Wednesday, February 26, 2014

Arizona SB 1062 Post-Mortem: Statewide, It Would Chiefly Have Licensed Sex Discrimination. That's Right, Sex Discrimination.

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.]


JONES said...

I'm a background lurker that loves your posts but had a question I hope you'll take up.

Question for you on the constitutionality of state civil rights laws like Arizona's that endeavor to protect specific groups from discrimination in public accommodation based on race, color, religion, sex, national origin or ancestry.

Sexual orientation isn't included. But under equal protection guarantees on the US constitution wouldn't they have to be? Is it legal for states to discriminate against a suspect class in it's civil rights laws? Marriage is a state regulated civil right and all state and federal courts post Windsor have ruled that an exclusion based on sexual orientation is a violation of equal protection. Under that same logic wouldn't an exclusion from another civil rights law also be a violation? Don't states have an obligation to protect all citizens equally or show a valid reason for not doing so? With the recent federal courts finding heightened scrutiny applicable to homosexuals wouldn't this make it even more imperative that they be included?

In his ruling on Texas marriage equality ban Justice Garcia said this about states responsibilities under equal protection clause. '"Any state law involving marriage or any other protected interest must comply with the United States Constitution."

Any state law involving any protected interest.

Am I wrong on this?

egarber said...

Suppose the law had passed.

Would there be constitutional challenges besides animus directed at a group? Couldn't somebody challenge the law on overbreadth grounds -- i.e., it's not narrow enough to avoid violating 14th Amendment equality generally? But in that case, would it be as-applied, not a prima facia ruling?

Are there precedents similar to what I'm describing?

Michael C. Dorf said...

In response to both JONES and egarber:

These questions implicate the issue presented in the Michigan affirmative action case currently pending before the SCOTUS, Schuette v. Coalition to Defend Affirmative Action. There, the Court faces the question of whether the statewide prohibition on a practice that is not itself constitutionally required--race-based affirmative action--is unconstitutional. Romer says that where the purpose of withdrawing or prohibiting such protection is animus, that's a violation, but the earlier race-based cases disavowed an animus inquiry. The issue is unsettled.

egarber said...

What's a little weird is that anti-gay bigots are probably better protected absent such a "shield" law, like you say -- since orientation isn't a protected class in relevant federal or state civil rights laws. (I think that should change, but it's largely beside the point here).

Suppose Arizona passed a law protecting my right to not buy certain books because of religious objections. All the law would do is invite litigation not otherwise available -- perhaps on First Amendment grounds of some sort.

So in the end, I guess some folks aren't satisfied with their existing right to discriminate; they want the government to endorse and legitimize it. But that could very well backfire, because as a result of all this, making orientation part of the federal civil rights act is back on the radar.

Am I missing something?

Joe said...

To be clear, since it does sound strange, my understanding is that federal civil rights laws ban discrimination based on sex in EMPLOYMENT but when it comes to 'merely' refusing service in a public accommodation (of a certain size -- this also would not cover everything state laws might), only "race, color, religion, or national origin" is covered.

The discussion is appreciated. The veto was discussed on news programs last night, e.g., but generalities were discussed. The specifics were not.

Neil H. Buchanan said...

egarber's second comment applies more broadly to the whole SSM revolution. That is, the Religious Right brought this on themselves, by making a big deal of preventing gay marriages that were pretty unlikely to happen. The activist/humorist Kate Clinton said several years ago that SSM will become legal because of Pat Robertson. Before Robertson initiated the big anti-SSM freak-out in the 1990's, most LGBTQ people didn't imagine that SSM was achievable in their lifetimes. (They were also pretty ambivalent about marriage, for obvious reasons, and could easily have been apathetic re the issue.). But once the Religious Right drew the battle lines, the fight was on. Apparently, religious bigots need to learn to shut up, if only for their own good.

Joe said...

I don't know about the final comment. I read Prof. Eskridge's book arguing for same sex marriage in the 1990s.

It seems to me that it was a logical final step once same sex relationships themselves were generally accepted, at least at some point. It was a matter of how long.

Opposition very well good have helped, egging them on. But, DOMA was a sort of 'stop sign' by those who knew what way the wind was blowing. Once Hawaii took SSM seriously, the idea was on the table. Opposition or no, it was starting to be seriously thought about in the 1990s.

And, couples basically already were married in that they for years lived together in committed relationships, set up households etc. It's like Scalia's dissent in Windsor. It is amusing that district judge after district judge are quoting him. But, he didn't say something novel.

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