Senate Bill 1062 suddenly became a hot issue with emotional rants on both sides. An article in The Arizona Republic quoted Felecia Rotellini, Democrat, stating that, “SB 1062 is not about the free expression of religion. It is about discrimination. As a result, it undermines the heritage and values of our country and state – the preservation of liberty, justice and equality under law. . .”
I agree with Rotellini, but not for the same reasons. Yes, the question is about discrimination in the most honest sense of the term. Discrimination is the right to choose, and the right to choose is the very essence of life, liberty and the pursuit of happiness. The right to choose is included within our first amendment right to freedom of expression.
We, as a people, also have agreed to limit our right to choose in certain circumstances, e.g., choosing on the basis of race, ethnic origin, skin color, etc.
Rather than undermining our heritage and values, as Rotellini proposes, the very discussion we are having strengthens our values and, ultimately, our heritage.
This very discussion strengthens the idea of liberty, justice and equality under the law.
In 2013, the New Mexico Supreme Court unanimously ruled, in Elane Photography v. Willock that the state’s Religious Freedom Restoration Act (RFRA) did not apply in a case where a private party sought to enforce a state law against another private party. SB 1062 sought to ensure that state laws that violate the religious liberty of private persons cannot be enforced simply because the government is not technically a party to the case.
What did SB 1062 propose to do? It attempted to expand Arizona Revised Statutes 41-1493 and 41-1493.2 to include a broader definition of person. It expands the definition of exercise of religion to include both practice and observance. It also defined state action as any action by the government. There was a clear, unambiguous absence of any anti-gay language in the bill.
So, let’s ask why this particular New Mexico gay couple chose this particular wedding photographer? There are gay directories that list gay owners or gay-friendly shop owners. Why didn’t this gay couple choose a wedding photographer from the directory? There would be no issue. There would have been no SB 1062 controversy.
From the wedding photographer’s viewpoint, why should he or she have to do business with someone he or she would rather not? What if the wedding photographer denied a customer because the customer was white or because the customer had cats or because the customer had terrible body odor? Would there have been an SB 1062 in these scenarios? I think not.
Let’s turn the situation around. Let’s have a gay couple owning a bakery. A potential client, a Muslim, orders a wedding cake. The gay couple denies service to the Muslim because they do not approve of Islam’s treatment of gays and women. Should the gay couple be sued and their business destroyed? I think not. All businesses have a right to refuse service within the context of civil rights legislation.
The wedding photographer did not deny the gay couple because they were gay. The denial by the photographer was not an act of hatred against gays but an act of fidelity to religious principle, as he or she understood it.
If there is no “illegal discrimination” involved, how is the gay couple’s right to choose balanced against the photographer’s right to choose? It is the gay couple’s prerogative to ask for the wedding photographer’s services just as it is the wedding photographer’s prerogative to refuse service.
In my view, the wedding photographer’s denial also brings adverse consequences: loss of income and the potential of lost business from future clients . . . not a smart business strategy.
The gay couple did not lose anything from not being able to use this particular wedding photographer. They could take their economic power to a different wedding photographer . . . and probably be happier for it.
As for the New Mexico judge, it remains to be seen as to whether he was totally biased in his decision or totally ignorant of every day life.