Editor's Note: Guest blogger Hillary Schneller is a fellow for health and reproductive rights at the National Women's Law Center, where she focuses on using nondiscrimination provisions in the Affordable Care Act to address sex discrimination in health care.
Since the Arizona legislature passed SB 1062, a bill that would allow anti-gay discrimination, three Republican state senators have said they regret voting for the bill and that Governor Jan Brewer should veto it. They were rushed, they say--no time to read the two-page bill. Maybe we should forgive them for coming late to the party and embrace the fact that they've come at all?
Mitt Romney, Senators John McCain and Jeff Flake, too, are urging Governor Brewer to veto the bill. (Or as Rush Limbaugh calls it, "bullying.") She may--and she should.
But a veto won't end the persistent campaign to recast religious freedom protections as a right to discriminate.
This bill has renewed attention on Arizona elected officials' recent history on civil rights. Recall that for many years the state refused to celebrate Martin Luther King Day, or its 2010 anti-immigrant law that raised sharp concerns about racial-profiling. But Arizona is not alone in its push to sanction a religion-justified license to discriminate.
Kansas already considered a similar bill--and for the moment at least has dismissed it, perhaps in an effort to avoid another round of "what's the matter with Kansas?" questioning. South Dakota has also rejected bills that would have allowed individuals and businesses to discriminate against LGBT people.
But this is an idea that hasn't gone away. Next up, Missouri, Mississippi, Ohio, Oklahoma and other states will soon consider similar bills.
This bill is wrong and backwards for so many reasons. For one thing, it guts laws in several Arizona cities that specifically prohibit discrimination against LGBT people. Instead it invites and sanctions discrimination against LGBT people across the state.
Moreover, the bill doesn't use the words "gay" or "sexual orientation" in giving business owners the right to discriminate. In other words, it does not limit its invitation to discriminate to sexual orientation, so it could undercut existing statewide protections and give license to discriminate based on race, sex, disability, religion, or other characteristics.
It's true that federal civil rights law would trump this state bill, but note that, for example, no federal law prohibits sex-based discrimination in public accommodations. Arizona state law says that public accommodations can't discriminate on the basis of sex, but this bill represents a threat to that state-level protection.
Governor Brewer may well end up vetoing the bill, perhaps because Arizona doesn't want to be seen (yet again) as the state that progress left behind or face boycotts and economic losses. But the larger campaign to redefine religious freedom as a license to discriminate didn't start in Arizona and it won't end there.
The same rationale used in Arizona has been used for supporting failed, but repeatedly-introduced congressional proposals allowing employers and insurance companies to refuse coverage of any health care service so long as they came up with a "religious or moral" reason for it. Religiously-motivated opposition to birth control? Mental health services? Vaccines? HIV/AIDs treatment? Pregnancy care for women who are not married? Not if that health care item violated the boss's religious beliefs.
It was the same rationale used in pushing to expand an already unnecessary religious exemption in the latest Senate debate of the Employment Nondiscrimination Act (ENDA). The (failed) amendment would have permitted a broad range of employers to use religion to fire or refuse to hire LGBT people.
And it's the rationale that for-profit corporations are using to challenge the Affordable Care Act (ACA)'s requirement that employee insurance coverage include birth control. In two cases the Supreme Court will hear on March 25, two for-profit companies--Hobby Lobby, an arts and crafts store chain and Conestoga Wood, a furniture and cabinet manufacturer--are arguing that they can discriminate against their female workers and their employees' female dependents because... religion.
Employers that cover the full spectrum of men's preventive services but exclude birth control--a service needed, used, and supported by a vast women majority of women--from their insurance plans discriminate on the basis of sex. Access to birth control allows women to make decisions about education, work, family and their reproductive lives. It is, in short, fundamental to women's equality.
That seems to be a core reason that politicians and bosses are up in arms about it. As one court of appeals judge in another case challenging the birth control benefit recently put it:
"I suspect as a matter of public discourse, if not judicial treatment, the fact that contraceptive care implicates both sex and women, also has something to do with the reason why the contraception mandate seems different from other provisions of the ACA."
These arguments are the same as the ones an employer made in a 1986 case, seeking to justify its sex-discriminatory policy of providing health coverage only to "heads of household" by using a definition the employer said derived from Scripture. The employer's religiously-based definition meant only single persons and married men had insurance coverage--married women could not obtain coverage through their employer.
The employer lost: religious freedom protections don't trump women's equality, the court found. And this is not ancient history: a chain of New Jersey banks recently offered similar reasons for refusing to provide health coverage for dependents of single mothers or married women; the boss believes that it's a "man's responsibility to provide for his family," according to a former employee.
These challenges to antidiscrimination rules are not about religious freedom--religious exercise doesn't justify slamming the door in anyone's face. Instead they are about attempting to manipulate religious freedom protections into an affirmative license to discriminate.
These are attempts to halt or roll back hard-won progress on gender and LGBT equality, to push people back into the closet and tell women they have no place in the world of men. But religious belief cannot be a license to deny others basic civil rights.
The Arizona bill should soon join the list of failed attempts to dress discrimination up as religion.