Arizona, the "Cost" of Living in a Pluralistic Society, and Loving the Alien

I've been away from this blog for a while for a variety of reasons, but in light of everything that has happened in the last few days regarding these "religious freedom" bills in Arizona and other places I think it's time to get back to writing.  Before getting into my take, it's worth while to take a look at Elizabeth Scalia (no relation to Justice Scalia) and her writing on the subject.  While i don't agree with everything she says, she communicates clearly in her writing that she is trying to approach these questions honestly and in a spirit of charity, and is worth a read.

Also, before we get really going, allow me to put on my lawyer hat and take a look what the proposed law in Arizona actually does and says, as even this basic point seems to be a source of disagreement.  The full text of the bill can be found here (in a convenient redline form) but the bill basically does two things.  First, it expands the definition of who gets to asserts free exercise rights under the statute from "religious assembly or institution" to, well, everyone ("any individual, association, partnership, corporation, church, religious assembly or institution, estate, trust, foundation, or other entity").  In other words, whereas currently under Arizona law a Catholic parish ("a religious assembly or institution") has the right to opt out of anti-discrimination laws (such as those that would make it illegal to have a blanket ban on "hiring" a woman as the pastor), now anyone can take advantage of the same rule.

Second, it expands the definition of "state action" to include legal actions brought by non-governmental entities.  So, free exercise is no longer a defense just to actions by the government, it is a defense to actions by anyone who attempts to use any law as the basis for their claim.  Consider this example.  I'm a Catholic, and I apply for a job with Company XYZ.  The head of Company XYZ has a religious belief that Catholics are not Christians and the Pope works for Satan, and therefore refuses to consider my application.  If I were to bring a Title VII employment discrimination claim (the "application of any law"), it would seem that Company XYZ would be able to use this law as a defense to my claim, as forcing them to hire Satanic Catholics violates their religious principles (or so they would claim).  Then the burden would be on me to show that the State has a compelling interest in forcing Company XYZ to hire me, and that the method they chose was the least restrictive means to accomplish that interest.

It is worth pointing out that, under my scenario, it certainly seems to me that the Arizona law would be preempted by Title VII and similar federal civil rights legislation.  As federal law is supreme over state law, state laws that make in impossible or difficult to enforce federal rights have to give way to those federal rights ("conflict preemption").  And I don't think it is particularly close.

OK, enough legal analysis.  What does this mean?

The first thing that becomes immediately apparent is that this law is far, far broader than simply being about baking wedding cakes.  As written, the law would allow someone to opt-out of any law based on any kind of religious belief.  It is breathtaking in its scope.  Gay rights may be the flavor of the day (month, year) but there are more issues of religious conscience than just gay rights.  For example, this law makes the attempts to overturn laws against polygamy far easier.  After all, certain religious traditions praise polygamous practice, and under the proposed law the burden is now on the state to show that the prohibition passes strict scrutiny.  Once this box is opened, it will be far harder to close than its drafters presumably think.

The second thing goes to the idea of preemption.  We've already had this argument before, fifty years ago.  Throughout the South, large majorities of people wanted to have the freedom not to provide economic services to a class of people based on a set of principles, often religious or religiously-influenced principles.  We, as a society, made a decision that the ability of every citizen to live and work and have a normal life was more important than the private convictions of the merchants.  And yes, that meant that the merchant's freedoms, including their religious freedoms, would be compromised.  Different freedoms are often in tension with one another, and a society has to decide which set of freedoms are going to be prioritized.

This to me is why the analogies to Jim Crow are fair.  Sure, you can come up with a bunch of distinctions between situation of blacks in the South and gay people now, but the underlying principle is the same.  Arizona's proposed law says that individual religious convictions trump the ability of gay and lesbian people to fully participate in normal society, in precisely the same way Jim Crow said that the convictions of the white majority in the South trumped the rights of African-Americans to participate in life.  We as a society rejected that principle in the 60s with regard to Jim Crow, and the same applies now.

In the Torah, God makes clear to the people of Israel how they should treat those who are different from them.

When an alien resides in your land, you shall not oppress the alien.  The alien shall be to you as the citizen among you; you shall love the alien as yourself, for you were aliens in the land of Egypt.
- Leviticus 19:33-34.

Note that there are no qualifiers on this command.  It does not say "assuming they worship the Lord," or "assuming follow the commands of the Law."  No, the people of Israel are to love the alien as themselves, full stop.  Why?  Because the people of Israel know what it is like to be the minority, to be the one who is looked down upon, who is viewed as a deviant.  They suffered persecution and discrimination.  But, presumably, they also know what it is like for someone to reach out to them in kindness and offer aid, despite the differences between the peoples.  The evil of exclusion must not be returned to others, and the consolation of a helping hand in a time of distress must be returned to those in need, regardless of who is reaching out their hand.  That is what God commands of the people of Israel, and that is what I believe God commands of us.

For that reason, I was heart-broken to see that the Catholic bishops of Arizona endorsed SB 1062.  We, as Catholics, were aliens in this land for a long time.  We were the ones that laws like SB 1062 would have been used against.  It is true, fortunately, that very few American Catholics personally know what it is like to be excluded and shunned for who we are, but as a collective body, it is part of our identity.  And yet, now that we are no longer the alien, the Arizona bishops would have us exclude others, to treat the alien in the same way we were treated.  To endorse this law is a failure of our collective memory as a people, and a failure to follow God's commands.

God is commanding us to love those in the minority, including gay people, as ourselves.  We cannot do that and allow laws like this to exist.

[Note: in between my initial draft and publishing this post, Gov. Brewer of Arizona vetoed SB 1062].

[Update:  Excellent post from Rachel Held Evans that is worth reading].


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