On the “I Am Outraged That Jan Brewer Would Veto This Meaningless Legislation” Argument

It seems that the latest strategy to defend Arizona’s recently deceased anti-civil rights bill is to assert that it’s really nothing, essentially a reiteration of rights that already exist.  Via Roy, Rich Lowry exemplifies this approach: “The legislation consisted of minor clarifications of the state’s Religious Freedom Restoration Act, which has been on the books for 15 years and is modeled on the federal act that passed with big bipartisan majorities in the 1990s and was signed into law by President Bill Clinton.”  If these are just “minor clarifications to already-existing federal rights, what’s the big deal either way?  Well:

If you’ll excuse a brief, boring break from the hysteria to dwell on the text of the doomed bill, it stipulated that the word “person” in the law applies to businesses and that the protections of the law apply whether or not the government is directly a party to a proceeding (e.g., a lawsuit brought on anti-discrimination grounds).

This is, as Ian Faith would say, considerably more than minor.  That the existing RFRA should be read as applying to businesses is, at best, extremely questionable. The claim was an unprecedented invention of the endless ad hoc legal war against the Affordable Care Act, and it was unprecedented because the idea that secular businesses can “exercise” religion is incoherent gibberish on its face.  And in the context of civil rights law, giving business rather than individuals a religious exemption to neutral laws is a big deal, particular if the Supreme Court ends up defining the ludicrously trivial burden of the contraception non-mandate as “substantial.”  An individual exemption would rarely create an exemption to civil rights statutes, but a business exemption is a whole different story.

Needless to say, Lowry then proceeds to “you’re the one that’s intolerant” routine — which has the inevitable problem of being just an argument against the concept of civil rights legislation. The history of “religious freedom” being used as a pretext to justofy discrimination is a long and inglorious one.