Arizona Gov. Jan Brewer yesterday vetoed a bill that would have permitted businesses to refuse service to gays if doing so would violate their religious convictions.
The Anti-Defamation League commended her for the veto, and the Jewish Community Relations Council in southern Arizona advocated against the bill. From the JCRC release earlier this week:
While we fully support the constitutionally protected rights of every citizen to adhere to religious beliefs and convictions as they see fit, as Jews, this kind of legislation raises deep and unsettling resonances to our history of persecution. The implicit permission granted by legislation like this, to allow citizens to discriminate against others based on their own religious convictions and beliefs, has historically been the decisive moment which leads to horrifying and destructive outcomes for our People and others.
Absent from the debate over the law, however, were the voices of leading national Orthodox Jewish groups, which is interesting because they have opposed same-sex marriage and warned that religious freedom faces threats stemming from gay marriage’s advance. More broadly, Orthodox groups have advocated against legislation that would impinge on beliefs they have nothing to do with (the smoking of peyote) and even those that they theologically oppose (denial of contraception coverage).
So what gave in Arizona? Agudath Israel of America told JTA it did not take a position on the case. Contacted by JTA, Nathan Diament, the executive director of the Orthodox Union’s Advocacy Center, said that he had not closely reviewed the Arizona legislation.
But speaking broadly, he noted Orthodox advocacy in the past for the federal Workplace Religious Freedom Act, legislation initiated, incidentally, by John Kerry when he was a Massachusetts senator. That legislation seeks to protect individuals on both sides of a business equation: The client seeking a service and employees who may have a religious objection to providing it.
The act has never passed Congress, although legislation with similar provisions has been adopted in New York, New Jersey and Massachusetts. The federal legislation does not mandate accommodation of a worker’s religious beliefs but requires a balancing test. If, say, an employer needed to staff a business on Christmas Day, he would need to show that he canvassed employees to find out whether there were any who were willing to work on the holiday. If the employer could not identify such an employee, it could require those who objected to work the day.
As an example, Diament mentioned one of the cases cited by Arizona lawmakers who backed the recent bill: a New Mexico photo studio that was sued for not working at a gay wedding.
“What you would have had was not a situation in which the New Mexico photography company would have gotten to say ‘We won’t provide photographs for your wedding,’ but if there was an individual photographer, he might be able to bow out, and a different photographer with the same company would have taken the pictures,” Diament said.
He noted that such accommodations were written into Oregon’s law allowing physician-assisted suicide. “If you are a pharmacist and you object to physician assisted suicide, the pharmacist does not have to dispense those drugs, they pass it off to another pharmacist,” he said.
There were no objections to that proviso, he said, because it was more “politically correct” to oppose euthanasia than same-sex marriage.
“The balancing should be that the people who are entitled to lawful services, whether they are a same-sex couple or a woman seeking contraceptives from a pharmacy, they should receive the services they are legally entitled to, but the person on the other side of the counter who has a conscientious objection should have their concerns accommodated as well,” he said.
“If people are more interested in a practical solution that is respectful of conscience concerns on both sides, a more commendable approach is to have individuals on both sides be accommodated as much as possible.”