By CROSBY BURNS
As LGBT activists cheered the demise of Arizonaâs controversial âlicense to discriminateâ bill, one thing seemed lost on the media, in progressive circles and among most Americans: Even with Gov. Jan Brewerâs (R) veto, businesses in a majority of Arizona cities still have the legal right to discriminate against LGBT people.
If passed, SB 1062 would have afforded business owners the right to refuse service to patrons that identify as LGBT based on those ownersâ religious beliefs. In this respect, SB 1062 is part of a broader pattern of dangerous âreligious freedomâ bills being proposed throughout conservative statehouses in the United States. In this respect, the defeat of SB 1062 is something to celebrate, as anti-gay legislators in other states will think twice before introducing similar legislation that sanctions LGBT discrimination behind the guise of âreligious freedom.â
However, most activists are celebrating last weekâs veto as if SB 1062 would have stripped all Arizonans of nondiscrimination protections they currently enjoy under state law. This is far from the truth.
Looking broadly, federal law affords no legal protections against discrimination on the basis of either sexual orientation or gender identity. While an alarming nine out of 10 Americans believe laws like the Employment Non-Discrimination Act already exist, the cold hard truth is that under the law of the land in the United States, itâs perfectly legal to deny someone employment, refuse someone service, or kick someone out of their apartment simply because they are LGBT.
Where federal policymakers have failed to enact comprehensive LGBT nondiscrimination legislation, a number of states have filled the void with nondiscrimination laws that provide LGBT people protection in employment, housing and public accommodations. However, fewer than half have done so. Or put another way, in a majority of statesâstates like ArizonaâLGBT people have no protections against discrimination under state or federal law.
Itâs true that in Arizona, the cities of Phoenix, Scottsdale, Tempe, Tucson and Gilbert have municipal ordinances that afford their LGB citizens some protections against discrimination (Phoenix, Tucson, and Tempe also afford protections to transgender citizens). Signing SB 1062 into law would have invalidated these cityâs ordinances, which according to U.S. Census data account for 2.6 million people, or 40 percent of Arizonaâs total population. In that respect, the defeat of the bill was certainly a huge victory in maintaining these important protections.
However, the billâs defeat legally changes nothing for LGBT people living in the remaining cities accounting for 60 percent of Arizonaâs population. If SB 1062 had been passed into law, businesses could legally turn away LGBT customers. But even today without SB 1062, businesses can still turn away LGBT customers in the 86 Arizona municipalities that do not have any LGBT protections on the books. Nevertheless, this fact seems lost in the media and among LGBT activists.
There is a lot to celebrate with SB 1062âs veto. The massive opposition to this bill is one more indicator of the huge cultural shift we have made as a country, a shift away from bigotry and toward fairness and inclusion of LGBT people in our society. Moreover, the groundswell of opposition to the bill included Arizonaâs two Republican senators, Fortune 500 companies, and even many of the Arizona state legislators that voted for the bill in the first place.
In this respect, the defeat of this bill is a significant symbolic victory for the LGBT movement. And as mentioned earlier, itâs a significant legal victory for LGBT Arizonans living in cities like Phoenix where they are afforded some protections against discrimination.
And yet despite these victories, the controversy that was SB 1062 was a missed opportunity. It was a missed opportunity to have an important conversation about the lack of legal protections afforded to LGBT Americans in this country. While marriage equality is on the march both in the courts and in the statehouses, legislation outlawing discrimination against LGBT people has stalled. To change that, we need to acknowledge that those laws donât even exist in the first place.
So yes, in many ways the veto was something to celebrate. But while LGBT Americans today celebrate the defeat of anti-gay bills such as SB 1062, they also await the passage of state and federal laws that would positively provide them the protections they deserve but currently lack. This means, for example, Congress finally passing comprehensive protections for LGBT Americans such that all people are protected against discrimination, regardless of the state where they reside. Now, that would be something to celebrate.
Crosby Burns is a candidate for a masterâs degree in Public Policy at the Harvard Kennedy School of Government. He is the managing editor of the LGBTQ Policy Journal at the Kennedy School.
White House Press Secretary Jay Carney was cautious in his response Tuesday when asked about a controversial “license to discriminate” bill in Arizona, saying the legislation sounds “pretty intolerant” without directly expressing opposition to the measure.
Under questioning from NBC News’ Peter Alexander, Carney said the administration doesn’t generally weigh in on state legislation, but the president’s support for LGBT rights is well known.
“Well, my suggestion yesterday that it sounded like a pretty intolerant proposed law, I think, reflects our views,” Carney said. “As a practice, we don’t generally weigh in on every piece of legislation under consideration in the states, but I think the president’s position on equality for LGBT Americans and opportunity for all is very well known. And he believes that all of us, regardless of sexual orientation or gender identity should be treated fairly and equally, with dignity and respect. That view would govern our disposition toward a state law under consideration.”
Now that both chambers of the Arizona Legislature have approved the bill, it comes before Gov. Jan Brewer, who has to decide whether to sign or veto the bill. If enacted, it would expand the state’s definition of exercise of religion to allow businesses and individuals to discriminate based on religious reasons. Critics say the measure is aimed at allowing discrimination against LGBT people.
Brewer was among the attendees in Washington for a meeting of the National Governors Association. Asked whether President Obama spoke with Brewer about the legislation, Carney said he’s “not aware” of any such talks.
Although the White House has yet to articulate direct opposition to the bill, others who have weighed in opposing it include Apple, Inc. and the Arizona Chamber of Commerce. Additionally, the Arizona-based American AirlinesÂ has called on Brewer to veto the billÂ as well as both U.S. senators from the state: Jeff Flake (R-Ariz.) and John McCain (R-Ariz.).
Major LGBT rights groups have refrained from calling on Obama to speak out on the bill. The generally unstated view among LGBT advocates is that vocal opposition to the bill from Obama may actually act as an incentive for Brewer to sign it. The two have a history of hostility, which includes an exchange in which Brewer publicly pointed her finger in his face at an Arizona airport.
As the Blade reported on Monday,Â Eunice Rho, an advocacy and policy counsel for the American Civil Liberties Union said lawmakers behind legislation like the one in Arizona “donât care much for what the president says or thinks” on policy matters.
Meanwhile, the Human Rights Campaign is pointing to a “chorus of voices” in a statement that have already denounced Arizona’s controversial proposal as the organization maintains it and similar bills in other states are bad both for civil rights and businesses.
âThese bills are bad for business, bad for the LGBT community and bad for all Americans,â said HRC President Chad Griffin. âThese bills have nothing to do with faith and everything to do with shamefulÂ discrimination.Â Make no mistake about it; states that doÂ enactÂ these bills into law will face less investment, fewer jobs and a reputation for standing on the wrong side of history.â
âThe Fortune 500 is the most effective lobby for gay rights.â
So declared television journalist George Stephanopoulos, a former Democratic Party adviser, last Sunday on the political news program he hosts.
Stephanopoulos was referencing the widely acknowledged role that business played in Arizona Gov. Jan Brewerâs veto last week of state Senate Bill 1062. The legislation would have extended the legal shield granted to religious institutions against being sued for denying service to persons based on religious beliefs. Existing law would have been broadened to include âany individual, association, partnership, corporation, church, religious assembly or institution or other business organizationâ provided the required religious beliefs were âsincerely heldâ and a lawsuit or other sanction would substantially burden the exercise of them.
Public focus on developments in Arizona, and to a lesser extent similar bills being considered in other states, was widespread â as was public disdain. Business leaders, industry organizations and corporate entities are credited with prompting Brewerâs decision.
Clarion corporate antipathy, both within the state and across the country, was decisive. Business pressure for a veto, both in the public arena and behind the scenes, was pervasive and engaged businesses both small and large. Brewer prominently referenced business opposition when announcing she had halted the law. The next day White House Press Secretary Jay Carney first identified business when enumerating those who had successfully contributed to the billâs demise.
Government has long been a lagging indicator of popular opinion and tardy in implementing policy revisions. Public sentiment on LGBT civil equality has outpaced legislative action at the federal level and in most state and local jurisdictions. Large numbers of businesses have led the way in implementing a complement of now commonplace protections in the workplace, usually much earlier and often more broadly than those guaranteed by the actions of either elected officials or government bureaucracies.
Since the landmark adoption in 1975 of sexual orientation employment protections by AT&T, fair treatment has expanded exponentially among businesses. In its Corporate Equality Index for 2014, the Human Rights Campaign reports that historic numbers of American businesses âchampion LGBT equalityâ â including 91 percent of Fortune 500 companies providing explicit protections on the basis of sexual orientation. Growth in recent years has accelerated at unprecedented rates.
Business leaders and organizations understand that embracing modern standards of equitable treatment is essential to attracting and retaining talent and best maintaining a corporate environment encouraging success. Companies also require the ability to relocate employees absent reluctance based on the territorial legal implications for workers and families. Larger enterprise with centers of commerce spanning geographic locations and political jurisdictions have little patience for the burden of managing the administration of variable tax and benefit policies or suffering inconsistencies in workplace matters.
Disgruntlement with differing jurisdictional same-sex marriage laws, for example, will likely speed laggard federal regulatory and benefit clarifications as well as spur national uniformity. Business advocacy could prove to be a notable incentive for encouraging both a national right to marry and consistent conveyance of privileges and obligations.
Ironically, should the federal Employment Non-Discrimination Act be enacted its practical significance will be largely illusory, outpaced by wholesale prior corporate implementation as standard practice. The numerous exemptions stipulated in the long-languishing legislation will leave untouched the small segment of micro-businesses and other institutions most likely to include the relative few who would desire to resist compliance if affected. In local jurisdictions with similar laws, legal claims have been nearly nonexistent â softening business concerns regarding the potential volume of frivolous or retaliatory complaints and the expense of defending against them.
Business affirmation and advancement of fair and equal treatment offers benefit of normalizing the notion and strengthening community support. Corporate leadership on LGBT equality should be embraced as an asset in broadening civil adoption and cultural acceptance. It is imperative that allies be acknowledged instead of permitting those promoting a perpetual state of alienation to prevail.
Enterprise is not the enemy.