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One Problem With That Arizona Bill



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I ain’t no betting man, but if I had to lay money down I’d bet that Arizona governor Jan Brewer will veto Senate Bill 1062, sparing the Grand Canyon State the withering glares of right-thinking liberals everywhere and giving George Takei a dry, sunny climate to get away from it all. The governor, as Andrew Johnson reported, is under enormous pressure and reportedly leaning toward a veto. The defection of many prominent fellow Republicans, including several who voted for the bill, gives Brewer plenty of cover for at least a pocket veto; and any future political ambitions she may nurse give her incentive. And while I’ve learned not to use Facebook or Twitter as a proxy for anything, the overwhelming negative reaction I’ve seen suggests the consequences for the state’s reputation and apparent attractiveness would not be minor.

As Johnson and others have pointed out, much of the vituperation of S.B. 1062 has involved misrepresenting its contents and putting the worst possible construction on its aims. It seems reasonable that giving a business professional the right to avoid entering a deal that he or she feels is morally questionable does not imply an endorsement that person’s view. The argument that Jim Crow–era bigots also claimed religious defenses is a particularly silly dodge: The Bible has plenty to say on sexual matters, and very little on race.

That said, S.B. 1062 sets out to fix a bug that looks to me like a feature: On the issue of the right to turn down business, Arizona does not have one code of conduct for the entire state. S.B. 1062, if I’m reading it correctly, would overturn that, making it impossible for, say, Phoenix to pass a different set of laws from Prescott. You may argue that that’s good, because First Amendment freedom of conscience should not be abridged by municipal authorities (who are usually the very worst of tyrants). But local abridgments of speech rights happen all the time, in the form of billboard restrictions, bans on certain kinds of advertising, and the many house-beautiful requirements zoning martinets love.

This is the beauty of having 31 flavors: People in Yuma don’t necessarily have to live the same way as people in Tucson. Scaled up, it’s the compelling argument for “experiments in living” and interstate competition. But in this case we’re talking about a state governor’s veto power, and so the argument needs to be scaled down. Mobility among states is easy enough; mobility within a single state is even easier. If Phoenix wants to pass a law infringing the rights of religious bakers, or Kingman wants to require everybody to sing “Route 66″ once a day, they can be allowed to do so and reap the rewards or punishments. If an overwhelming majority of Arizonans were excited about S.B. 1062’s aims, they could adopt it, tell the NFL to go to hell, and let dissenters head to New Mexico. Based on the resistance to the bill, which is not just coming from outsiders but from within the state, there doesn’t seem to be that kind of unanimity. And again, the only question before us is whether the governor should sign it.

I’m making an academic argument. In reality, the reaction to a state law like this one would almost certainly end up going in the opposite direction from the kind of subsidiarity I have in mind, toward federal courts and an intervention by the Holder Justice Department’s Civil Rights Division, not to mention the fury of George Takei. But that’s another reason to leave this situation alone, and let Arizonans vote with their feet when they feel a local government is going to far.



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