The Arizona bill (SB1062/HB2153) was vetoed, killed, by Arizona Governor Jan Brewer on February 26, playing the role of Brutus. Dear readers, fellow Americans, I write to bury it, not to praise it.
In her statement vetoing the bill, Governor Brewer said that the bill was, in effect, too ambitious since it did it not address any “specific and present concern” in the state of Arizona, and she is an honorable woman. I might suggest, however, that it is entirely appropriate for a governor and legislature, to anticipate litigation, to anticipate violations of liberty — based on violations and allegations of violations made in other states on issues where a state, like Arizona, is not immune. See Paul Kengor’s list that appeared on this page on February 28.
Unlike the 2,000-page bills we’re (too) used to seeing at the federal level, for example, the Affordable Care Act, which even the Senators and Representatives do not read before voting on them, this bill was but two pages long. The bill was an amendment to an existing 1999 law on religious freedom and those two pages include only 60 words of amending language. Certainly, based on just the number of words, the bill could not be regarded as ambitious.
In fact, because the 1999 Arizona law was similar to a federal law and other state laws, there had been litigation under these other statutes. Eleven legal scholars, consisting of Democrats and Republicans, both for and against same-sex marriage, wrote a four-page letter dated February 25 to Governor Brewer and the public in support of the bill explaining how the bill tweaked the 1999 legislation to resolve ambiguities, ambiguities that had been the subject of litigation in other states. Tweaking a bill to resolve ambiguities in a 15-year old law would not seem to be ambitious for a legislature, but Governor Brewer is an honorable woman.
On February 27, a columnist for the Washington Post, Mr. E.J. Dionne, wrote on the subject. Mr. Dionne called the Arizona legislation a “battering ram,” evidence of “backdoor resistance to social change,” a “cheap political tactic,” “anti-gay,” and “bigotry,” and Mr. Dionne is an honorable man.
Mr. Dionne used a poll taken last summer for the proposition that most Americans are opposed to what the Arizona bill would have allowed, namely, florists, caters, and photographers refusing to provide services at same-sex weddings. Let’s put aside the question of whether the bill would actually do that (see the letter by the 11 legal scholars), even if that’s what the sponsors of the bill thought the bill would do. Mr. Dionne wrote that the poll showed that the American people distinguish between clergymen refusing to preside over a same-sex wedding and businessfolks refusing to provide flowers, wedding cakes, etc.
Thus, Mr. Dionne assumes that his readers accept the notion that whatever “most Americans” believe is not only correct but legislators in each of the 50 states should reflect national polls, and Mr. Dionne is an honorable man. I had thought that, under the U.S. Constitution, the state of Arizona had the prerogative to adopt legislation appropriate to Arizona.
Mr. Dionne reports that the poll found 61% would allow clergy members to refuse to preside over a same-sex wedding. He makes no comment on that figure, and he is an honorable man. Should I exclaim: How magnanimous of these 61%? I had thought that Americans true to the U.S. Constitution would unanimously allow clergy to act according to their consciences and refuse, or not refuse, to preside over a same-sex wedding-clergy.
What do the other 39% believe? Mr. Dionne didn’t say. According to the poll, 28% (of the 100%) would require the government to force clergy to preside over same-sex weddings. In addition, well over 50% would allow the government to force citizens who were not members of the clergy to provide services to same-sex weddings. Foolish me. I didn’t know that the First Amendment distinguished between members of the clergy and other citizens. I had thought that all Americans were free, that they possessed inalienable rights, that “the rights of man come not from the generosity of the State, but from the hand of God” (Kennedy Inaugural), that the First Amendment simply recognized the rights of Americans that are theirs by nature and by nature’s God.
With all the attention on same-sex wedding ceremonies, there has not been much public discussion on questions of religious liberty and conscience in the before and after. Mr. Dionne didn’t address these questions. The poll he cited raised a couple of them, such as an accountant refusing to prepare tax returns for a same-sex married couple, or a doctor refusing to deliver the baby of a lesbian couple. Should it be lawful for a lawyer to refuse to advise same-sex couples on pre-nuptial agreements? Should it be lawful for marriage counselors and divorce lawyers to refuse to accept same-sex couples as clients? I note in this regard that Pope John Paul II raised a question in 2002 that received a good deal of press at the time, namely, whether Catholic lawyers should be in the business of divorce law at least with respect to Catholic couples.
The Arizona bill was killed and buried. But I wonder.… Given more time and reflection, might it yet rise like a phoenix?