Why the Arizona 'Gay' Bill is Too Broad–and Why the Left is Wrong About It

I’ve written previously about the actual text of SB 1062, the controversial Arizona bill that critics say would allow business owners to discriminate against gays. The bill creates a legal defense against discrimination lawsuits for business owners who have a sincere religious objection to homosexuality. It is an understandable reaction to several bad court decisions against bakers and photographers who declined to serve gay weddings.

Unfortunately, it is written too broadly, and would probably allow discrimination that goes beyond the specific issue of gay marriage, which was the issue the bill was intended to address. But the left is not using that quite reasonable argument. Instead they are distorting the text and intent of the bill–and some are even arguing that it doesn’t matter if the courts coerce you to participate in a gay wedding: your belief remains intact, after all.

That is not just an incorrect argument but a really dangerous one. What good are First Amendment freedoms of speech, religion, assembly and the press if you are not permitted to act on them? The same argument has been used to justify totalitarianism throughout the ages: the Soviet Union provided similar “freedoms.” And–quite outrageously–the same argument is being used by Obama to enforce Obamacare’s contraception mandates.

Yet the bill remains too broad, and I think a closer look at the cases that inspired it reveals why. A baker or a photographer provides unique personal services–which, in the case of the photographer at least, must also be delivered onsite. Because the individual providing the services might be interpreted as lending their personal support to a gay wedding, it is understandable that those who feel strongly about that would prefer to decline.

It is more difficult to make the same argument when it involves a business owner who supplies mere goods to a gay wedding–chairs, tables, un-arranged flowers–in other words, items that do not require the participation of the business owner directly in the ceremony, or that do not carry the business owner’s personal touch. Declining to participate in that way looks less like a defense of religious belief and more like an act of basic prejudice.

Should the law prevent people from expressing such prejudices by refusing transactions of goods or property? It already does, in some cases–in real estate, for example. Gays have not traditionally enjoyed the same level of civil rights protections as racial and religious minorities, but that is changing. Regardless, such discrimination is on shakier ground than the cases SB 1062 was designed to protect, where religious freedom is directly at stake.