By Mike Dorf
In vetoing Arizona SB 1062, Governor Brewer pointed to its possible "unintended and negative consequences." I've been thinking about those consequences and I came to a surprising conclusion: If SB 1062 had been enacted, its chief statewide effect--indeed possibly its only statewide effect--would have been to create a religious right of businesses to discriminate on the basis of sex. That's right, sex. Not sexual orientation. Or at least not mostly sexual orientation. Let me explain.
As numerous commentators have noted, even without SB 1062, it is already permissible under Arizona law for private parties to discriminate on the basis of sexual orientation--even if they are merely ordinary bigots rather than religiously motivated bigots. Thus, while the intention of the sponsors of SB 1062 may have been to provide a shield for sexual orientation discrimination, at the state level that shield was not necessary. I suppose they may have worried that in the future the Arizona legislature would provide protection against sexual orientation discrimination, but of course a future Arizona legislature could also repeal or modify the religion exception, so if that was their worry, their remedy was pretty weak.
Moreover, as I explained in my Verdict column earlier in the week, if federal anti-discrimination law were amended to provide protection against private sexual orientation discrimination, then an Arizona exception for religiously motivated discrimination would be ineffective under the Supremacy Clause. To be sure, it might not be needed even there, depending on how broadly or narrowly the courts construe the federal RFRA, but at least for now, SB 1062 looked like it would have provided broader exceptions than the federal RFRA.
Thus, the question arises: Would SB 1062 have provided exceptions to any state law? By common law and by its state constitution, Arizona treats some businesses as common carriers with obligations to serve the general public, presumably including gay people. SB 1062 also would have provided exceptions to local ordinances, like the Phoenix one, that included sexual orientation on the list of forbidden grounds for discrimination.
But what about at the statewide level? There, the real bite of SB 1062 would have been with respect to antidiscrimination law that applies to most or all businesses. So, are there categories of discrimination that are forbidden by Arizona law but permitted by federal law, such that SB 1062 would have broadened the exception to them? I did a little research and found that the answer is yes.
Federal civil rights law forbids discrimination in public accommodations "on the grounds of race, color, religion, or national origin." Arizona civil rights law forbids discrimination in public accommodations "because of race, color, religion, sex, national origin or ancestry." Did you see that? Arizona law, but not federal law, forbids discrimination in public accommodations based on sex and ancestry. Let's put ancestry aside because nearly all actionable ancestry discrimination will already be covered by one of the other categories. That leaves sex discrimination as the one category of discrimination in public accommodations banned by Arizona state law but not federal law.
My first thought on making this discovery was "Really?" It doesn't violate federal law for a restaurant to keep out female customers? Holy crap! Why didn't I know that?
Other than inexcusable ignorance on my part, the answer is that state public accommodations laws tend to apply to a bigger list of proscribed categories of discrimination than federal public accommodations law does. And that's true of Arizona too. Under current law, a Phoneix Hooters can't keep out women.
SB 1062 would have changed that, at least for a Hooters (or other business) owned by a religious sexist. A business owned by someone who thought it unGodly to serve women wearing pants, or to serve women with uncovered hair, would have been sheltered by SB 1062.
Was that sort of "unexpected consequence" a realistic scenario? Maybe. Charges of sex discrimination in public accommodations do arise from time to time. Moreover, given the tendency of religions to regulate gender relations, it's not hard to imagine a case in which a religious objection would ground refusal to comply with the sex discrimination prohibition.
Now it's important to remember that SB 1062 would have taken the form of an expansion of Arizona's RFRA, which, like the federal RFRA, allows for the application of laws that substantially burden religious freedom, so long as the laws satisfy strict scrutiny. If SB 1062 had gone into law, would the Arizona courts have said that the state's interest in sex equality trumps religious freedom? Maybe, but there's no guarantee.
After all, the same strict scrutiny test applied (as a matter of expressive association under the First Amendment) in Boy Scouts of America v. Dale; yet there the SCOTUS casually dismissed the idea that an equality interest satisfied strict scrutiny. There are differences in context, to be sure, but the very idea of religious exceptions to civil rights statues appears to imply that sometimes the equality norm will fail to overcome the religious objection.
So, although they may not realize it, the women of Arizona (and for that matter the men, who also could have been denied service based on their sex under SB 1062) owe Governor Brewer thanks.
[NB: This is a revised version of the post, to take account of local ordinances. Thanks to Garrett Epps.]