Adam Shapiro

Several US states, most notably Arizona have considered legislation to ensure the “religious freedom” of individuals and businesses who wish to exclude customers on the basis of their sexual orientation.  These bills don’t really signal a new change in the cultural or legal understanding of sexuality and sexual orientation in the United States.  Rather, they represent an adaptation of legal strategies to enable the continuation of old understandings as they become politically marginalized.  What’s new is the attempt to legally redefine ‘religious freedom’ as a broader means to refuse to act in ways otherwise required by state or by society and to extend the rights entailed by religious freedom to other entities besides privately religious persons and explicitly religious organizations (like churches.)  In recent years, similar ideas of religious freedom have been used to defend employers who refuse to provide health insurance that includes access to contraception or abortion, to defend teachers and publicly funded charter schools that object to teaching evolution or sex education, to defend pharmacists that refuse to stock drugs or fill prescriptions for contraception.  Even though the most immediate implications of the Arizona bill (if it is signed into law) would be to enable sexual orientation-based discrimination on religious grounds, the bill might also provide greater legal cover to advocates of religious freedom applications in these other instances (most of which also concern the regulation of sexuality in some way.)

Are Arizona and other states using ‘religious freedom’ to create the ‘Gay Jim Crow’?

The most recent wave of bills comes in the wake of a New Mexico lawsuit concerning a photography studio who refused to provide services to a same-sex couple, with the photographer maintaining that: “to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.” The specifics of that New Mexico case raise some questions about the broader Arizona bill, which would apply to any businesses, not just those which, like photographers, engage in “creative speech.”  Is all commerce a form of speech act, and thus legally protected? That argument could be made in the wake of the 2010 Citizens United decision, but the new laws move the ground from freedom of speech to freedom of religion, which would render some of the complex legal issues involved moot.

The Arizona bill raises some other complex constitutional issues, particularly in the requirement that “a person’s religious belief is sincerely held.” (Section 2, part E, #2) The accommodation of sincere religious belief has a long history in the American legal tradition, and has been most carefully explored by the courts with respect to conscientious objection to military service.  In two supreme court decisions from the Vietnam era, United States v. Seeger and Welsh v. United States, the courts ruled that sincere belief need not be religious, per se.  Nonetheless, the courts established standards for determining the sincerity of belief, (finding for example, that opposition to a particular war was not grounds for objector status) In Seeger, the court opines:

we hasten to emphasize that while the “truth” of a belief is not open to question, there remains the significant question whether it is “truly held.” This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact—a prime consideration to the validity of every claim for exemption as a conscientious objector.

The court in Seeger immediately noted that further acts were necessary to provide for the evaluation of the sincerity of claims of conscientious objectors.  The Arizona bill has not provided an enforcement mechanism, nor any guidelines for the determination of whether the refusal to engage in commerce with a person based on their sexuality or orientation can be determined to be held in a sincere and consistent way.  This means that one’s belief cannot be only that homosexuality is itself religiously wrong, but that commercial engagement with other people who are religiously wrong is itself prohibited by one’s religion.

More importantly, the standards for the determination of sincerity with respect to conscientious objection are inherently rooted in the individual, (the Welsh case discusses the problems with restricting this to “religious training and belief,” but imposes a similar level of requirement as to the depth and consistency of one’s convictions.)  The attempt to extend religious freedom to entities that are neither individuals (who have personal sincere beliefs) or religious organizations (who have explicitly articulated doctrines or long histories of sincere principles which are advocated as part of their mission) raises great questions for the enforcement of this law.  Can a corporation have sincere religious beliefs? Can a business wholly owned and managed by a sincerely religious individual?

The court has already ruled on similar questions regarding employers.  In 1982 United States v. Lee, the court held that even though Amish individuals could be exempted from paying social security taxes on grounds of religious objection, that Amish employers had no right to refuse to pay taxes on behalf of their employees.  The court has recognized that a business engaged in employment cannot claim religious freedom exemption.  (An article in The Atlantic this month rightly pointed out that the Lee case might prove crucial in the efforts of Hobby Lobby to use religious freedom to deny contraception coverage to its employees.) The relationship between businesses and employers is different than that between businesses and consumers, but the finding of the court remains that employers don’t have an overriding right to religious freedom in a way that supercedes their obligations as commercants.

These legal questions matter because if the Arizona bill (or a similar one in another state) becomes law and is challenged in court, it will probably be the legal history of religious freedom, not the recent history of developments in the regulation of sexuality (such as Lawrence v. Texas or US v. Windsor) that will probably determine the legal arguments against the “Gay Jim Crow.”

Update: After this was drafted, Gov. Brewer announced that she would veto SB1062 in the face of political opposition.  In her prepared remarks, Brewer stated: “I have not heard of one example in Arizona where a business owner’s religious liberty has been violated.” Especially as similar bills are still being considered, her continued implication that the right to decline commerce to people based on sexual identity as a matter of religious freedom remains an important political and legal issue.

Editor’s note. For further discussion of these issues on Notches also see:


Adam Shapiro is a lecturer in intellectual and cultural history at Birkbeck, University of London.  He works on the cultural history of America, particularly with social movements engaged with intersections of religion and life sciences.  His first book is Trying Biology: The Scopes trial, textbooks, and the antievolution movement in American schools (Chicago, 2013).  He also blogs at Trying Biology and tweets @Tryingbiology



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20 Comments

  1. This is really interesting, but, really, the “gay Jim Crow?” I have a problem with the way that phrase appropriates the history of institutionalized racism against Black people in the US (very much an ongoing legacy in Arizona, as in many parts of the US, especially in relationship to SD107, which legalizes racial profiling) for a gay rights movement that has been dominated by white gay men. If there are similarities between Jim Crow and this legislation allowing people and corporations to discriminate against people on the basis of sexual orientation then the limits of those similarities need to be pointed out. Otherwise we risk returning to an old, and offensive, debate in which gay white men claim equal ‘victimhood’ status with Black people. As James Baldwin said: “I think white gay people feel cheated because they were born, in principle, in a society in which they were supposed to be safe. The anomaly of their sexuality puts them in danger, unexpectedly …Their reaction seems to me in direct proportion to their sense of feeling cheated of the advantages which accrue to white people in a white society. There’s an element, it has always seemed to me, of bewilderment and complaint. Now that may sound very harsh, but the gay world as such is no more prepared to accept black people than anywhere else in society.” (quoted in this article here: http://www.huffingtonpost.com/todd-clayton/gay-will-never-be-the-new-black_b_2639537.html)

    • Thanks for your comment. You’re right that there’s a level of appropriation in the phrase “Gay Jim Crow,” and I don’t mean to presume “equal victimhood” between issues of inequality based on race and on sexual orientation in America. I cited that phrase in this post to call attention to the increasingly frequent use of rhetoric comparing the oppression and disenfranchisement of African Americans and that of gay people. Opponents of SB1062 (and similar bills) have used that exact phrase, and invoked the images of segregated lunch counters. (They’ve cited cases like Loving v. Virginia in marriage-related battles.)

      Use of the phrase “Gay Jim Crow” by opponents of SB1062 is precisely drawing from the presumption that there is a parallel. While the parallel may serve a moral and political end (and we might debate the legitimacy of that appropriation); I hope it’s clear in my post that, from the legal/judicial perspective, these ‘religious freedom’ bills come from a very different lineage.

      I think the question of how groups of people who describe themselves as victims of oppression are regulated in the ways that they articulate that oppression is a complex one. And it certainly isn’t my intention to perform that regulation myself.

  2. I’m glad that Arizona’s governor vetoed the bill. It just goes to show how unpopular and dangerous a bill can be that even major opponents of same-sex marriage are against it. Hopefully no state will be foolish enough to pass any bill like this one.

  3. What I don’t understand is how refusing service to someone based on religious beliefs (gay was not mentioned in the bill) is not okay. BUT it is okay and even applauded when a gay person refuses service to someone because they don’t agree with gay marriage. NM Governor Martinez had a hair dresser, who happened to be gay. He refuses to serve her or do her hair anymore because of her belief that marriage is to be between a man a woman. Why is this not condemned in the same way as Christians are when they stand for their beliefs? The double standards are glaring and quite common. At what point is it okay to stand on your beliefs? Is it to be never allowed or only allowed on politically correct issues?

    • Good question. As I understand them, virtues are considered virtues because they should be universally applied. If I’m kind only to the kind, then my kindness is pretty clearly false. If I only show love for those who love me, what good is that? So is tolerance a virtue or not? Do we tolerate all, or just those we like? Can we justify intolerance toward the intolerant? And who gets to define which groups are targets for discrimination, and which groups are protected from it?
      Honestly, people. You can get a cake or a haircut from someone else, problem solved.
      (Of course this dodges the tough questions, like medical care. But when life is in jeopardy or alternatives aren’t available, one would think the need would trump my personal desire to distance myself from whatever I disagree with… because I live in a fantasy land of idealism where people can be sensible.)

  4. The only good thing about the current circumstances, if you can call them “good,” is that we will all be witness to another sad segment of human history finally righting itself a little. The bullshit people choose to alienate one another over is the most frustrating, pathetic part of being on this planet, I swear. Being gay should be about as significant as being left-handed or right-handed: just another manifestation of a human being, nothing to see here, folks, move along, keep on lovin’.

    It’s a major victory each time we get to witness society pulling together and putting its collective foot down. I wish it had been sooner but it’s a thrill to actually be a contributor to it finally happening. Now, I look forward to the day that old bigots, misogynists, fat shamers, and homophobes are a boring thing of the past.

    • Oddly enough your reply perfectly illustrates the double standard. The New Mexico same sex couple that sued the photographer had no problem finding a photographer to do the job at less money. ‘You can get a photographer somewhere else, problem solved.’ They sued even though there were no actual damages; not even a true inconvenience. I call this legal extortion. It is the, ‘Give me what I want or I will use the courts and public pressure to destroy you.’

      • Sure. Just like when black people weren’t inconvenienced at all by having to go find a water fountain labeled “Colored” because, hey, there are plenty of water fountains around. Go find one.

        It’s not the point that there are plenty of photographers in New Mexico. The point is that no human being should be treated like they are an “other” or a “less than” based on something so arbitrary as whom they decide to love.

        I see that your last name is Vasquez. Imagine your car breaking down and every mechanic in a twenty mile radius refusing to even talk to you because you have a last name that irks them. Sure, you can take a bus or find a friend to drive you to another mechanic but why should you have to? Your car is the same make as the one Jones, Smith, and Harrison each brought in. Your money is just as good as theirs. Your time is just as precious. Your rights are just as real. Now, imagine your grocer suddenly refusing to sell you food, your bank suddenly refusing to continue your checking account, your school suddenly suspending your children, your employer suddenly downsizing only people with ethnic names.

        Don’t worry, you can always get another job “somewhere else, problem solved.”

        Equal rights means just that. It means everybody gets to use whatever damned water fountain they want. Because thirsty.

      • I guess you missed my point. I was responding to the comment above, that discounted the refusal of a haircut based on the idea that they could get a haircut anywhere. If you are going to apply a standard then it must be applied to everyone. If it is not we call it a double standard.

  5. I completely agree with allthoughtswork. It’s not okay to stand on your beliefs when doing so contradicts your beliefs in another way. Being christian, or part of most religions that believe in the bible in any way teaches the most important message is to love one another. When that message gets lost in “defending” it, you have just defeated it. I don’t think anyones god would be happy with them seeing the hatred being thrown around.

    I live in Arizona, and know a bit about this religious discrimination thing also. Adam, you should do some research on something called the Phoenix Goddess Temple. It might make an interesting case study for you. I believe they are in the middle of their trial right now.

    🙂

  6. It baffles me how one might know if a perspective client is gay or not. Are there going to be badges on the sleeve aka the Nazis. A man goes in to buy a wedding cake. Is he going to have to declare he is gay and the top piece is two guys? Is it the owners business to decide whether to do the cake or not. What about the Black guy marrying a White girl. I do not like it. No cake for you? It is a Jew marrying a Catholic girl. No cake for you? A person who has four wives. No cake for you? Where does it stop? Is not the business to sell cakes?

  7. The principal of the Arizona bill was definitely reminiscent of Jim Crow. Thankfully LGBT people have a voice and more popular support than people of color did under Jim Crow, and this type of legislation probably has a higher chance of backfiring than being successful.

  8. Well it’s coming, gay rights and legalization of pot (the second I don’t think is a major issue, but I’m for it). More understanding and acceptance seem to be the rise and once we have moved forward we never slip back. Some historian said that (I can’t remember which one) and I certainly hope he’s right.

  9. Reblogged this on jseanjr and commented:
    Great piece!

  10. Pingback: Disputing ‘Gay Jim Crow’: Rhetorical Appropriation in LGBT Politics | Notches: (re)marks on the history of sexuality

  11. Why would you want to force a company to sell you a cake for your gay commitment ceremony if the baker tells you he doesn’t want to because he doesn’t want to join in celebrating your gayness? Take your business some where else where you are welcomed. That’s the free market.
    I can’t believe how much press and attention the gays get seeing as they make up something less than 2% of the population. With 50 million people on food stamps, we have bigger problems than a couple people not getting their cake.

  12. Reblogged this on Soft Grip and commented:
    An interesting observation of fact

  13. Pingback: Individual Freedom as Misappropriation: Race, Sexuality and the Use of Civil Rights History | Notches: (re)marks on the history of sexuality

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