I was troubled by a column that ran in The Freeman last week. Many other libertarians and conservatives were, too. Author Casey Given offered a convoluted critique of Arizona’s Senate Bill 1062, colloquially known as the “antigay bill” and the “religious liberty bill,” depending on whom you ask. Given claimed that hidden beneath the proposed legislation lurks a “homophobic push to protect the right to discriminate against gays.”
To be clear, the bill makes no reference to sexuality. Not a single line, word, nor letter alludes to sexual orientation. Given acknowledges this but, like other critics, believes that we can deduce malice through a faulty analysis of existing federal statutes. In other words, since the Civil Rights Act (CRA) only prohibits discrimination against race, sex, and religion, and since SB 1062 isn’t an override of the CRA, Arizona must be trying to take advantage of certain loopholes.
We have a term for this: cherry-picking.
SB 1062 does one thing and one thing only: It aligns Arizona state law with the federal Religious Freedom Restoration Act, expanding the circumstances under which religious liberty can be used as a defense against claims of discrimination in court. “It does not (unlike the recent, equally controversial Kansas law) prescribe the outcomes of those hearings,” Brandon McGinley writes at The Federalist. That means, had SB 1062 passed, a jury still would have been able to find an individual guilty of unlawful discrimination if his or her religious freedoms weren’t in jeopardy of facing “substantial burden” otherwise.
The definition of “substantial burden” is a question for the courts. It can pertain to several categories of people—homosexuals, polygamists, unwed sexual partners—as well as to a diverse group of activities, including meal service and overnight accommodations. Was the legislation reactionary? Who knows? Maybe its sponsors’ actions were sparked by the Christian woman in New Mexico who declined to photograph a lesbian couple’s commitment ceremony and was subsequently charged with (and fined $7,000 for) violating the state’s Human Rights Act. Or maybe they were further encouraged when a husband and wife in Oregon, citing their Christian values, refused to bake a cake for another lesbian couple’s wedding and were forced to shut down their business.
Either way, the motivations behind these laws and the laws' effects in the real world are completely separate discussions. And to condemn a state legislature as “bigoted” while failing to elucidate the broad and comprehensive nature of the bill in question is not only a cheap rhetorical ploy but also a careless interpretation of its text.
Let’s move past Arizona’s legislation, though. Libertarianism is deeply rooted in the freedom of association. The author’s portrayal of this right as an “excuse” seemed to be the highest point of contention for readers. As one commenter explained, “The thing that bothers me isn’t different viewpoints within libertarianism. Rather, it is promoting viewpoints that try to change the meaning of libertarianism from consistent defense of liberty to something quite different.” If libertarians can defend the KKK's right to free speech without being charged with racism, we should be able to defend discriminatory business practices—be they against homosexuals, blacks, or any other category of human beings—without facing accusations of bigotry, a criticism much more fit for the cultural realm than the political one.
Individual liberty is not a social commentary. It doesn’t aim to form a consensus on the “right” or “wrong” way to exercise a freedom; it merely acknowledges the virtue of that freedom’s existence. Discrimination is nothing except the act of making a distinction, and in our communities it can have an ordering function as effective as those which govern the marketplace.