The US Constitution: a free pass to discriminate?

 (DISCLAIMER: This bill was vetoed after the article was written)

There are few countries in the world that value their Constitution as the USA does. It is a holy document, beyond reproach and of personal significance to every American. You would think that all laws that are enacted are done with the sanctity of the document in mind. After all, the Second Amendment remains the largest obstacle preventing gun control.

How ironic then, that Arizona lawmakers have forgotten both the First and 14th Amendments in their passage of SB 1062, a law that allows business owners to refuse LGBTQ+ customers if it offends their religion. It has provided a painful reminder that the fight for equal rights is not exclusive to Russia and Uganda. The argument against this law is straightforward. Any state action that legalises discrimination is just plain wrong. To target a suppressed minority that is struggling to get its voice heard is even more tragic. This is not a case of rhetoric or even the threat of action, as is the case with Georgia, which is also trying to pass a religious freedoms law – SB 1062 is state-sponsored homophobia, pure and simple.

The argument against this law is straightforward. Any state action that legalises discrimination is just plain wrong.

While the law, and the campaign behind it, would have us believe that religion is under threat from godless liberals, reality paints a different picture. In a recent state- wide survey by the Pew Research Centre, only 22% of Arizona’s population identified themselves as being either secular or atheist. Of the remainder, 67% identified as Christians. To suggest they need protection, especially in a part of the country where religion is held in high esteem, is laughable. Add to this the fact that LGBTQ+ individuals face enough discrimination in the state as it is, and the new law is even more worrying. Arizona was one of the morecent states to decriminalise homosexuality, doing so in 2001, meaning that there is still a significant portion of the population who grew up think- ing equal rights are not a necessity.

Same-sex marriage is illegal, and civil unions do not afford the same level of rights as heterosexual marriage. Adoption agencies must, by law, favour heterosexual couples and single parents ahead of homosexual couples. Sexual orientation is grounds for protection from hate crime, but gender identity is not. Furthermore, businesses have never been legally bound to protect LGBTQ+ employees. It is clear that the situation is bleak in Arizona. Unfortunately, it is also clear that an appeal based on the existing situation will not sway the Republican-majority Legislature.

Sexual orientation is grounds for protection from hate crime, but gender identity is not.

Instead of focusing on personal anger, I choose to remind them that they are undermining the freedoms they claim to value. Which brings me back to the Constitution. The First Amendment states that the government cannot make laws “respecting an establishment of religion” to ensure separation of State and Church. This is enough to significantly challenge the new law as it is giving precedence to religious belief. The 14th Amendment goes further by pointing out the equality of all US citizens under the law, regardless of religious beliefs. If SB 1062 is shaky under the First Amendment, it is unconstitutional under the 14th.

The fact that LGBTQ+ organisations have not threatened religious institutions means that the section of the First Amendment criminalising prohibition of religion is not justification. It is difficult to know how the average Arizona resident truly feels about the law. Protests have sparked up across the state, but many rural communities have welcomed the bill, as it defends archaic and bigot- ed views on what religion really is.

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Photo: flickr/stevenanichols