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How Something Good Could Come Out Of Arizona’s Awful ‘License To Discriminate’ Bill

By Ian Millhiser  

"How Something Good Could Come Out Of Arizona’s Awful ‘License To Discriminate’ Bill"

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Justice Anthony Kennedy

Justice Anthony Kennedy

CREDIT: AP Photo/Damian Dovarganes

Arizona is likely to give many business sweeping new rights to discriminate against LGBT people. Yet, by calling attention to the link anti-gay groups hope to forge between “religious liberty” and a right to anti-gay discrimination, this bill could unintentionally wind up advancing the cause of women’s health and potentially even rescue LGBT people from similar efforts to protect discrimination in the future. Or, to be more precise, it could have that effect if Justice Anthony Kennedy is paying attention to what’s going on in Arizona.

A bill currently awaiting Arizona Gov. Jan Brewer’s (R-AZ) signature or veto has been labeled a “license to discriminate” and “state-sanctioned discrimination towards the LGBT community.” The Arizona Republic urged Brewer to veto it because it would “allow businesses to refuse service to gays and lesbians on religious grounds.” Yet, what is most striking about the bill is how closely it tracks a pair of cases currently pending in the Supreme Court that, at least on the surface, have little to do with gay rights — and everything to do with whether employers can deny birth control to their employees.

Arguably the most closely watched cases this Supreme Court term will be Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, both of which involve religious employers who claim that they should be immune to federal rules requiring employer-provided health plans to cover birth control because the owners of those corporations object to contraception on religious grounds. A key issue in this case is whether the Supreme Court will allow for-profit corporations to raise a religious liberty claim — something that no court had ever agreed to until religious employers started objecting to these particular birth control rules.

Current Arizona law closely tracks the federal Religious Freedom Restoration Act, which forms the basis of the plaintiffs’ strongest claims in Hobby Lobby and Conestoga Wood. The bill on Brewer’s desk would amend Arizona’s religious liberty law in several ways, but the most significant change is new language expanding the scope of who is allowed to claim they are immune to complying with state law on religious grounds. Should Brewer sign the bill, “ANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY OR INSTITUTION, ESTATE, TRUST, FOUNDATION OR OTHER LEGAL ENTITY” will be eligible to make religious liberty claims. The bill would, in other words, adopt the plaintiffs’ position in the two cases before the Supreme Court that a for-profit corporation can practice religion and that a corporation’s faith can trump its obligation to follow the law.

What’s significant about the debate over the Arizona bill is that it drives home the fact that allowing corporations to claim religious exemptions to the law is not just about birth control — it’s also about whether businesses with anti-gay owners will have the right to discriminate against LGBT customers or even LGBT workers. Indeed, the bill’s proponents don’t even really try to hide this fact. According to state Rep. Eddie Farnsworth (R), the bill is a response to instances where anti-gay business owners in other states were “punished for their religious beliefs” after they denied service to gay customers in violation of those states’ anti-discrimination laws.

Which brings us to Justice Kennedy. Although Kennedy is widely perceived as a swing vote on the Supreme Court, this perception is not particularly accurate. On most issues that come before the Court, Kennedy votes consistently with the conservative bloc. He is only slightly less likely to side with corporate interest groups than the Court’s other four conservatives. He was the driving force behind the Court’s Citizens United decision authorizing unlimited corporate spending to influence elections. And he called for a sweeping judicial repeal of the Affordable Care Act.

This last issue should be particularly troubling to women’s health advocates. The birth control rules challenged in Hobby Lobby and Conestoga Wood are authorized by Obamacare.

Yet, despite his largely conservative record on the bench, there are a handful of issues where Kennedy has genuinely moderate views — and on these issues, he quite often votes with the court’s more liberal bloc. Gay rights is one of these issues. Indeed, Kennedy’s written with genuine compassion toward gay men and lesbians in his three major gay rights opinions. Marriage equality, Kennedy wrote in U.S. v. Windsor, “is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.”

The last time a conflict between gay rights and religious conservatives reached the Supreme Court, Kennedy broke with his fellow conservatives and sided with gay equality. The Court’s decision in Christian Legal Society v. Martinez presented different questions of law than Hobby Lobby or Conestoga Wood, but it also involved an anti-gay religious group claiming it should be exempt from an anti-discrimination policy benefiting gay students. In this case, Kennedy was not willing to allow the religious group’s desire to discriminate to trump an anti-discrimination policy.

So if Kennedy looks at Hobby Lobby and Conestoga Wood and sees a case about Obamacare and birth control, he’s probably going to vote with the conservatives. Kennedy has shown no love for the Affordable Care Act and little love for reproductive freedom. And, in contentious cases, he typically votes with the conservatives unless one of his pet issues is involved. But if Kennedy views Hobby Lobby and Conestoga Wood and a broad attack on the idea that religious employers have to comply with the law, and specifically, with laws protecting gay people, then he is much more likely to uphold the birth control rules.

The plaintiffs’ legal theory in Hobby Lobby and Conestoga Wood would, in the words of a brief filed by attorneys from Lambda Legal, “mark a sea change – not only in allowing business owners’ religious views about family planning to burden decisions employees are entitled to make for themselves, but also in opening the door to similar denials of equal compensation, health care access, and other equitable treatment for LGBT people, persons with HIV, and anyone else whose family life or health need diverges from their employers’ religious convictions.” If birth control loses in Hobby Lobby and Conestoga Wood, it is all but certain that gay rights will be next on the chopping block.

The bill on Brewer’s desk drives this fact home better than any brief or legal argument possibly could. Supporters of both gay rights and women’s health should hope that Kennedy is paying attention to Arizona.

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