As a resident of Phoenix, I'm not particularly worried about this new "religious freedom" bill...

[Gravitycollapse]

For two reasons:

1. Despite our recent and historical discrimination against the LGBTQ community, and I still remember the passing of Prop 102 in 2008, a majority of Arizonans now support gay marriage.

http://talkingpointsmemo.com/livewire/poll-majority-in-arizona-backs-gay-marriage

Far more Arizonans support same-sex marriage than oppose it, according to the latest Rocky Mountain Poll released Tuesday.

The poll showed that 55 percent of Arizona voters favor the idea of allowing gay and lesbian couples to marry legally, while just 35 percent said they are opposed.

Large majorities of women, Hispanics and voters under the age of 55 support same-sex nuptials. A plurality of voters over the age of 54 — 46 percent — supports gay marriage, while 40 percent of the group is opposed.

2. It is such a ridiculously obscene, clearly unconstitutional bill that I suspect the AZ State House will not vote for it and, even if they do, any court in the land is going to throw it out immediately.




These bastards of the AZ State Senate are unchecked lunatics. But I feel somewhat confident they will not hold such power for much longer. It seems that even the reddest parts of this country are rapidly changing their support for the rights of same sex couples.

[dsc]

1. According to Joe My God

the bill has already passed the House and Brewer isn't vetoing all bills like she was last year. I think this bill will pass.

[Gravitycollapse]

2. It passed the house less than an hour ago. After I wrote the OP.

Like I said, it doesn't stand a chance in any court. And shit is about to hit the fan in AZ.

[Jim Lane]

3. On what basis do you brand it as "clearly unconstitutional"?

It doesn't involve state discrimination that might violate the Equal Protection Clause. As I understand the bill, it merely allows some private entities to discriminate. As a general rule, discrimination by private entities (individuals or businesses) is not unconstitutional. For example, it wasn't until the Civil Rights Act of 1964 that restaurants across the country were required to serve blacks.

If the bill requires atheistic homophobes to serve gays, but allows religious homophobes to discriminate, then there might be an Establishment Clause argument against it, because religion is being favored over nonreligion. Its defenders might argue that it implements the Free Exercise Clause, getting into the difficult area where those two aspects of religious freedom don't always coexist peacefully.

[Gravitycollapse]

4. The law itself is a violation of equal protection.

And it qualifies because it is state sanctioned discrimination.

[Jim Lane]

6. Sorry, I still don't see the argument.

My point about the Civil Rights Act was that "state sanctioned discrimination" doesn't violate the Equal Protection Clause if it means only that the state doesn't prohibit private discrimination. If your argument were valid, there would have been no need for the Civil Rights Act -- a state that allowed restaurants to turn away black customers just on the basis of race would have been violating the Constitution. That, of course, was not and is not the law, which is why antidiscrimination statutes of various sorts have been enacted.

The Civil Rights Act prohibited some forms of discrimination (race, religion, etc.). It didn't include age. That's why there was a later Age Discrimination in Employment Act.

The problem for LGBT people is that the Civil Rights Act also didn't include sexual or affectional preference. That's why there's an Employment Non-Discrimination Act pending in Congress (passed the Senate, presumably not going anywhere in the House). Some states and municipalities currently prohibit private employers from refusing to hire LGBT people, but some don't. The states that allow such private discrimination aren't violating the Equal Protection Clause. If they were, we wouldn't need ENDA.

[HuckleB]

5. Surely, you are joking.

[Jim Lane]

7. I'm quite serious. Not every bad bill is unconstitutional.

Please note that the issue I'm raising is limited to the constitutionality of the bill. If I were in the Legislature, I would vote against it. But if it's enacted, and I were a judge hearing a challenge to it, I'd have to apply different standards. As a judge, I would not overturn a lawfully enacted statute unless it conflicted with something in the Constitution.

[HuckleB]

8. I'm still shocked that you can't see how this bill is clearly unconstitutional.

Do you know where we would be, if it was constitutional?

[Jim Lane]

9. To answer your question....

You ask where we'd be if this bill were constitutional.

We'd be in a country where the interpretation of the Constitution applies many of its provisions to state action but not to private action.

We'd be in a country where, as opposition to racial discrimination grew, the Supreme Court held (in Brown v. Board of Education) that segregation in public schools was unconstitutional, but where there was no serious basis for contending that segregation in a privately run restaurant was unconstitutional. We'd be in a country where, before the passage of the federal Civil Rights Act, some states prohibited "whites-only" restaurants but many did not, and where the states that allowed such discrimination were not violating the Constitution.

We'd be in a country where the Constitutional provision about equal protection was limited to discrimination by the government: "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws."

In short, we'd be in the country that we actually live in.

[KinMd]

10. Next years Super Bowl

is scheduled to be played in Glendale Az. The NFL had plenty of time to move it to a new location if this bill becomes law.