“Morally And Legally, The Right Call In Arizona”: Citizens Cannot Opt Out Of Civil Rights Laws
There’s no question that Jan Brewer did the right thing yesterday. No moral question. And no legal question either. Well, let me slightly amend that: With this Supreme Court, you never know about the future. But we know about the past, and decades of civil-rights case law are squarely on Brewer’s side, and supporters of SB 1062 just have to see this clearly and squarely and accept it.
It’s not like we’ve never fought over these questions. We have, of course, and a result, there’s a history here. And that history, that body of court decisions, says clearly, like it or not, that generally speaking, citizens cannot opt out of civil rights laws.
As Harvard law professor Noah Feldman pointed out yesterday in a Bloomberg view column, segregationist business owners in the South argued after the civil rights act of 1964 that their “constitutional right to associate” as they chose should permit them not to serve black customers. (The religious-liberty right, Feldman notes, has the same “constitutional status” as the right to associate.) But courts never said that this was permissible.
We may laugh today at the idea that the racist owner of a hardware store in Natchez in 1965 could have refused to sell a black carpenter a bag of masonry nails. But it was no laughing matter then. This was real. Congress, and then the courts, put a stop to it. As Feldman told me yesterday in a follow-up exchange: “Freedom to associate and exercise religion are basic rights. Excluding customers isn’t.”
The freedom to associate that Feldman mentions is one carve-out that courts have recognized. But that’s a narrow exemption, intended in real life mostly for private or fraternal organizations that are built around some idea of ethnic cohesion—New York’s Ancient Order of Hibernians, for example, which quite famously has been allowed for years to ban gay people and groups from marching in the city’s St. Patrick’s Day Parade.
By the way, doesn’t it seem weirdly anachronistic and reactionary that the Hibernians still enforce this ban? The gay-rights position was controversial back in the early ’90s, when I was covering these things. Now, the Hibernians’ position seems like something better suited to Alabama than New York City. In any case, after Rudy Giuliani and Mike Bloomberg marched in the discriminatory parade every years, new Mayor Bill De Blasio announced that he’s boycotting it.
But, the Hibernians are allowed to do this under their right to associate. There also exists a so-called “Mrs. Murphy” exemption to the Fair Housing Act for owner-occupied rental housing of four or fewer units—that is, if little old Mrs. Murphy subdivided her big house and wants to keep out certain people, she’s probably allowed to do that. And finally, in certain narrow cases, religious institutions that serve mostly religious purposes are allowed to hire only their coreligionists.
But a business vending to the general public? No way. If these “Christians” in Arizona are permitted to deny their services to same-sex couples, then atheist small-businesses owners in Berkeley are perfectly within their rights to hang a sign: “No Christian evangelicals served.” It would be crazy for courts to open that door.
Brewer seemed to understand all this properly with the money passage of her statement yesterday: “Senate Bill 1062 does not address a specific or present concern related to religious liberty in Arizona. I have not heard one example in Arizona where a business owner’s religious liberty has been violated.” She deserves credit for saying this, dismissing this specious religious liberty talk.
The legal history is clear. The legal future, though, is still a bit up in the air. Feldman acknowledges that SB 1062 “may well be constitutional” because the law’s supporters might be able to argue successfully that their tradition of religious liberty is “in jeopardy.” Samuel Bagenstos, a former assistant attorney general for civil rights under Barack Obama who now teaches law at the University of Michigan, explains that the Arizona law and others like it around the country constitute a new and not-yet-settled legal battle front. “These laws, by singling out gays and lesbians for less protection of antidiscrimination laws, are vulnerable to a challenge under the Equal Protection Clause,” Bagenstos says. “But the law’s very much developing in this area, so we really can’t say anything with confidence.”
It’s developing, but it’s mostly developing on the side of shutting down legal discrimination. Ask the Texas judge who yesterday struck down that state’s same-sex marriage ban, writing “that state-imposed inequality can find no refuge in our United States Constitution.” Increasingly, the law is coming to understand what more and more Americans understand. Gay people are equal. Period. There is no real religious basis for thinking otherwise. Ian Millhiser of Think Progress reminded us yesterday of people who used to think the same way:
In 1901, Georgia Gov. Allen Candler defended unequal public schooling for African Americans on the grounds that “God made them negroes and we cannot by education make them white folks.” After the Supreme Court ordered public schools integrated in Brown v. Board of Education, many segregationists cited their own faith as justification for official racism. Ross Barnett won Mississippi’s governorship in a landslide in 1960 after claiming that “the good Lord was the original segregationist.” Senator Harry Byrd of Virginia relied on passages from Genesis, Leviticus and Matthew when he spoke out against the civil rights law banning employment discrimination and whites-only lunch counters on the Senate floor.
It’s painfully obvious that in a mere 10 or 15 years, that’s how these Arizona Christians will be widely seen. They really ought to ask themselves if that’s the historic company they want to keep.
By: Michael Tomasky, The Daily Beast, February 27, 2014
“Discrimination Lapel Pins”: These “Religious Freedom” Bills Are The New Stand-Your-Ground Laws
Awaiting signature on the desk of Arizona Governor Jan Brewer is a bill that might be the most insidious attack on LGBT rights to ever pass both houses of a state legislature. SB1062 would allow anyone—be it an individual, association, partnership, corporation, church, religious assembly, foundation, or other legal entity—to deny services to others simply by asserting their religious beliefs. Interpreted broadly, the bill could override many equal protection clauses in Arizona law, including civil rights: A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus, or Muslims.
Republican legislators have made the intended target of the bill clear in their statements, repeatedly citing a New Mexican photographer who was sued when he refused to shoot a lesbian couple’s commitment ceremony. They claim the bill’s detractors are exaggerating its possible effects and are demonstrating hostility towards people of faith. But there is ample reason to believe that a law like this would open the door to discrimination. Once laws are passed, people who may otherwise be afraid of engaging in questionable behaviors may feel emboldened to do so. Moreover, these laws will likely be used by juries as legitimate reasons to dismiss cases against future defendants—after all, the law is the law.
The perfect case in point for all of this? The stand-your-ground laws which have been enacted in several states across America.
These laws were ostensibly passed to protect citizens from criminals by removing the need to retreat or escape when attacked, the rationale being that criminals would think twice knowing that their victims could legally defend themselves with proportionate force. And yet SYG defenses have been used with alarming frequency, and in scenarios unimaginable when these laws were passed, including by drug dealers and gang members. States which have enacted SYG laws have seen an 8 percent rise in “justifiable homicides,” possibly indicating that those with knowledge of the law are willing to take chances in situations where the law might apply.
Furthermore, SYG defenses are shockingly successful. Seventy percent of people who have invoked the defense have avoided prosecution. In fact, SYG laws seem to have tilted the odds in favor of the shooter: In states that have it, 13.6 percent of homicides have been ruled justifiable, while in those that don’t, only 7.2 percent have been deemed such. Unsurprisingly, the success of a SYG defense has a decidedly racial bias—white-on-black killings are far more likely to be deemed “justified” than any other kind.
What does this all mean for bills like SB1062? Granting people the legal right to invoke religious beliefs to justify their right to refuse service will embolden many people who might have otherwise been afraid to do so. Moreover, the defense could end up being a largely successful one. Certainly jurors who might already be biased will be unafraid to side with the defendants, but even those who might not agree with the law will be hard pressed not to accept its validity; should a defendant make a somewhat rational case for why their religious beliefs would be violated by providing these services, the jurors would be forced by the law to acquit. The law would not only provide cover to judges and juries who might otherwise harbor sentiments against the defendants for whatever reason, but would even compel those who aren’t biased to rule in favor of the accused parties.
Many have compared these laws to the gay propaganda bill that passed in Russia last June, some expressing dismay that such laws could be enacted here in America. In the sense that the Russian law seems to have emboldened many Russians to hunt down LGBT people (a law recently passed in Nigeria seems to doing the same thing), it’s not hard to draw the same conclusions here. These Republican legislators claim to want to protect people of faith, yet they did not invoke a single legitimate instance where a person’s freedom of religion is compromised by having to serve others. Purporting to be against discrimination, these lawmakers are trying to use the victim card against the very people they want to discriminate against. Yet there is a tacit social contract we all sign in pluralistic societies: Even when we do not agree with everyone’s beliefs or lifestyles, we still agree to treat each other fairly.
There’s something vaguely desperate about these laws, the last gasp of a cause aware that it’s dying. They are unlikely to pass constitutional muster; they hardly seem to be trying to do so. In all likelihood, Brewer will veto SB1062. As law, it would not only cause a ridiculous pileup in the courts but could tear at the social fabric of the state, exposing certain prejudices that best remain hidden—the landmines are too numerous for the governor to risk so late into her term. Still, this will hardly be the last we hear of these dubious “religious freedom” arguments. Every step in the civil rights movement was met with resistance. Now that the push for LGBT rights has gained such momentum, the backlash will only get stronger.
By: Eric Sasson, The New Republic, February 24, 2014
“A License To Discriminate”: Religious Freedom Is A Shield, Not A Sword
When a bad idea pops up in a state legislature, it’s about as common as the sunrise. When the same bad idea pops up in 10 state legislatures at the same time, something odd is going on.
At issue are proposals to make anti-gay discrimination easier for social conservatives under the guise of “religious liberty.” Kansas, for example, recently generated national headlines for a bill that would have given those with “sincerely held religious beliefs” license to discriminate practically everywhere – restaurants could deny gay couples service; hotels could deny gay couples rooms, even public-sector workers could refuse to provide services to LGBT Kansans.
Kansas’ right-to-discriminate bill was derailed, but as Adam Serwer reported yesterday, very similar proposals have drawn attention in Idaho, Nevada, Ohio, Oregon, South Dakota, Tennessee, and Utah. My colleague Laura Conaway found a related measure in Maine.
“Religious freedom is a shield, not a sword,” Nick Worner of the Ohio ACLU said, paraphrasing George H.W. Bush appointed federal Judge Carol Jackson. “It’s not religious freedom when you’re using it to hurt someone else.”
For proponents of civil rights, the good news is that these proposals are faltering in nine states. The bad news is, a bill in Arizona’s Republican-led legislature actually passed yesterday.
The bill, approved by the Republican-controlled Senate on Wednesday and the GOP-led House on Thursday, would bolster a business owner’s right to refuse service to gays and others if the owner believes doing so violates the practice and observance of his or her religion.
The state Senate passed it on a straight party-line vote, 17 to 13. The House followed suit, 33 to 27, with two Republicans joining all the Democrats in opposition.
This is no modest effort to accommodate religiously motivated discrimination.
Democratic opponents of the bill tried to make clear to GOP lawmakers just how significant the right-to-discriminate measure would be.
[O]pponents say it could also protect a corporation that refused to hire anyone who wasn’t Christian and could block members of the lesbian, gay, bisexual and transgender community from access to nearly any business or service.
“The message that’s interpreted is: ‘We want you to work here, but we are not going to go out of our way to protect you, to protect your rights, to protect your family,’ ” said Rep. Ruben Gallego, D-Phoenix. “God forbid should someone come to the Super Bowl and come to a restaurant that is not going to allow them in.”
The bill is awaiting action from Arizona Gov. Jan Brewer (R), who has not yet taken a position on the proposal.
If she signs it into law, a legal challenge would be inevitable. Organized boycotts would also appear likely.
By: Steve Benen, The Maddow Blog, February 21, 2014
“In The Name Of Creating Jobs”: Corporations Are Hijacking Government With GOP Help And At Taxpayer Expense
After being swept into statehouses in the red wave of 2010, Republican Govs. Scott Walker, John Kasich and Terry Branstad each presided over the replacement of a state agency responsible for economic development with a less public, more private alternative. Arizona’s Jan Brewer did the same in 2010 after replacing Janet Napolitano, who’d been tapped for Obama’s Cabinet. Walker’s Wisconsin, Kasich’s Ohio, Branstad’s Iowa and Brewer’s Arizona were only the latest to institute a “public-private partnership” approach to development: States including Indiana, Florida, Rhode Island, Michigan and Texas had done the same years earlier. Now North Carolina’s Pat McCrory, who entered the governor’s mansion in January, aims to do the same. A new report from a progressive group warns that means good news for the wealthy and politically connected, but bad news for just about everyone else.
“Privatization augurs against transparency …” Good Jobs First executive director Greg LeRoy told Salon. LeRoy is a co-author of the new report “Creating Scandals Instead of Jobs: The Failures of Privatized State Economic Development,” which his group released Wednesday afternoon. Based on recent years’ scandals and controversies in several states, the authors conclude that “the privatization of economic development agency functions is an inherently corrupting action that states should avoid or repeal.” They argue the record shows that “privatization was not a panacea,” but instead fostered misuse of taxes; excessive bonuses; questionable subsidies; conflicts of interest; specious impact claims; and “resistance to accountability.” Goods Jobs First funders include unions and foundations.
A spokesperson for Gov. Kasich emailed Salon a one-sentence take on the report: “We don’t pay much attention to politically motivated opponents whose mission is to combat job creation.”
Kasich promised as a candidate to substitute a new entity, led by “a successful, experienced business leader,” for the existing Ohio Department of Development. The result, JobsOhio, features prominently in the GJF report. The authors note that its board included some of Kasich’s “major campaign contributors and executives from companies that were recipients of large state development subsidies.” They write that JobsOhio “received a large transfer of state monies about which the legislature was not informed, intermingled public and private monies, refused to name its private donors, and then won legal exemption (advocated by Gov. Kasich) from review of its finances by the state auditor.”
The authors also fault the Arizona Commerce Authority, whose first head reaped a privately paid $60,000 bonus and resigned after one year; and the Wisconsin Economic Development Corp., which they charge has been “racked by scandals and high-level staff instability.” They cite accusations against WEDC including spending millions in federal funds “without legal authority”; failing to “track past-due loans”; and having “hired an executive who owed the state a large amount of back taxes.” LeRoy told reporters on a Wednesday conference call that, of the four newest public-private partnerships, Iowa’s was the only one to so far avoid significant scandal.
The report also slammed some of those four entities’ predecessors, including the Indiana Economic Development Corp. – GJF noted “a state audit found that more than 40 percent of the jobs promised by companies described by IEDC as ‘economic successes’ had never materialized” – and Enterprise Florida Inc.: while “more than $20 million in subsidies has gone to EFI board member companies,” in 2011 the Orlando Sentinel “reported that since 1995 only one-third of 224,000 promised jobs materialized.”
Gov. Scott’s office referred an inquiry to Enterprise Florida Inc., whose strategic communications director emailed that the group’s “efforts have resulted in an increase of competitive jobs projects established, private-sector jobs created and capital investment.” He noted that EFI “has received a clean opinion on its financial statements as conducted by its independent auditors and presented to EFI’s Board of Directors.” The offices of Govs. Walker, Brewer and Pence did not immediately respond to Wednesday evening inquiries.
“If we don’t know how the money’s spent, if we don’t get accurate assessments of the outcomes that we accept from our economic development subsidies or support, then there’s no way for us to evaluate the job they’re doing,” Donald Cohen, who leads the foundation- and labor-backed privatization watchdog In the Public Interest, told reporters on Wednesday’s call. “It’s fundamental to being able to manage our resources.” Cohen added, “When we’re talking about giving away the power and authority to give away public dollars, to make public decisions, then it is all the more important that public control be established in the strongest possible way.”
By “mingling private money or having board seats for sale,” LeRoy told reporters, public-private partnerships are “giving undue influence to a tiny share of mostly large companies that can afford to pay and play, potentially to the detriment of the focus of the entity.”
“You want people who are covered by ethics and disclosure and sunshine laws and oversight,” said LeRoy. “We know that government agencies aren’t perfect, but they by far are more accountable.” He also argued that public sector collective bargaining – which came under high-profile attack by Walker and Kasich – was also a check against abuse, because it “helps shield whistle-blowers and protect taxpayers.”
While GJF has proposed various safeguards for public-private economic development groups, it emphasized that its first choice would be for states to simply return their functions to fully public departments. “The economy is soft right now – we need to focus on the basics,” said LeRoy, rather than “tweaking the rules of a captive entity that co-mingles public and private money to get into all of these sort of gray areas.”
By: Josh Eidelson, Salon, October 24, 2013
“The Jan Brewer Cycle Of Death”: Turning The Gun-Buyback Model On Its Ear
I’m not an expert in gun buyback programs, but the basic idea seems pretty straightforward. In the hopes of getting more guns off the streets, there are organized events in which members of the public bring their firearms, and exchange them for cash. They’re usually publicly funded, though as Rachel noted on the show in March, some are privately financed.
But what matters is the point of the programs: removing guns from circulation. It’s possible Arizona Republicans find this confusing.
Arizona cities and counties that hold community gun buyback events will have to sell the surrendered weapons instead of destroying them under a bill Gov. Jan Brewer signed into law Monday.
The bill was championed by Republicans in the GOP-controlled Legislature who argued that municipalities were skirting a 2010 law that was tightened last year and requires police to sell seized weapons to federally licensed dealers. They argued that destroying property turned over to the government is a waste of taxpayer resources.
Hmm. Let’s say a local sheriff’s office in Arizona wants to reduce gun violence in its community by getting more guns off the streets. The sheriff decides to do this through a gun buyback program, encouraging local citizens to participate in exchange for money, helping to keep weapons out of the hands of children and criminals. The guns are then destroyed.
Under a new law championed by state Republicans, however, that sheriff’s office can’t destroy the guns — the firearms collected during the buyback will instead be brought to gun stores, where they then can be sold and put back on the streets.
The Arizona GOP wants to turn gun buyback programs into gun recycling programs — watch the assault rifle go from the street … to the police … to the gun dealers … back to the street.
Let’s all marvel at the cycle of life, or more accurately in this case, death.
By: Steve Benen, The Maddow Blog, April 30, 2013
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