Published on February 26th, 20140
Arizona Senate Bill 1062: Protecting Religious Freedom Without Invidious Discrimination
A variety of states are contemplating statutes that would affirmatively allow various kinds of discrimination by private actors against gay couples. The asserted concern is that same-sex marriage violates deep and sincere religious beliefs of many people, and that, in the absence of a specific immunity carved out in law, private individuals may be required to provide services that, to the provider, feel tantamount to an endorsement of such a marital state.
Assuming, for the sake of argument, that such efforts are sincere (they may or may not be, but I think that’s the right assumption to start with), the problem of course is that an explicit carve-out in law allowing discrimination on the basis of sexual orientation is prima facie invidious discrimination. It’s worth pointing out that the Supreme Court has already struck down laws manifesting such discrimination for failing the rational basis level of scrutiny – the lowest level of scrutiny. I’m skeptical of their reasoning, which appears to me more to suggest a heightened level of scrutiny is being applied, comparable to sex or race-related cases, but so it’s not terribly material why exactly the Court feels such laws are illegitimate; they clearly do.
Source: The American Conservative. Read full article. (link)