The Real Reason Arizona’s Anti-Gay Discrimination Bill Was So Bad



When Arizona Governor Jan Brewer vetoed an odious discrimination bill that would have allowed private individuals and companies to deny service to and otherwise discriminate against gay persons, most people breathed a collective sigh of relief. Many Republicans were happy to erase this stain from their brand, though conservatives in several states have other plans. Most Americans were just happy Jim Crow was not coming back.

Not everyone was so pleased. The right wing was, of course, up in arms. But few of us spend much time worrying about what Michelle Bachmann or Rush Limbaugh think. Then there was George Will, a conservative commentator without the Hellfire that rises from much of today's extreme right. Mr. Will coats his comments with his particular brand of amiability and an aw-shucks attitude in a bow tie. But his words were the most malicious.

WillHere's what he said in reaction to the veto:

It's a funny kind of sore winner in the gay rights movement that would say, 'A photographer doesn't want to photograph my wedding -- I've got lots of other photographers I could go to, but I'm going to use the hammer of government to force them to do this.'... It's not neighborly and it's not nice. The gay rights movement is winning. They should be, as I say, not sore winners.

He characterizes us as winners, which is both a half-truth and red meat for his conservative audience. We have not won anything. Sure, we are racking up notable victories, but you can still be fired in 29 states simply for being gay and I cannot marry the man I love in 33 states. Yet arguing that the fight is already over heightens the feverish paranoia of his readers and listeners; that is, he is warning conservatives that the gays already took marriage away from you and now they're coming for something more.

He also characterizes gays as childish, as ungrateful "sore winners" who do not know how to be neighborly, mature, and adult about things. This may sound peevish and petty, but it also fits within a long standing conservative narrative about gay people as unserious, untrustworthy, small, and entirely hedonistic, just like children.

Mr. Will's greatest sin, however, is in his offensive misconstrual of the substantitive fight. To him, we have a choice between this or that photographer -- "I've got lots of other photographers I could go to" -- suggesting that mere choice is the paradigm for equality. This is the grave error libertarians commit, as well. Equality is barely half a loaf if its pinnacle is the ability to choose. True equality is also about equal dignity, about not being treated like a second-class citizens simply because of who you are. Avoiding state sanctioned discrimination because you may have another choice does not change the underlying fact of discrimination.


NogaysallowedImagine if you walked into a store holding your same-sex partner’s hand and was told, politely, that you would have to leave. “This establishment declines to serve homosexuals.” You’re shocked, but the smiling discriminating proprietor adds, “But don’t worry. There’s a shop that serves you down the street.”

Several things have happened here.

First, you are being singled out because of your (perceived) sexual orientation. Our society does not countenance discrimination on the basis of who we are, whether its the state doing it (the Equal Protection Clause has a few things to say on that) or private citizens who open their businesses up to the public (public accommodations laws apply here). In either case, the principle is offensive to modern notions of equality. A world that allows some businesses to discrimination on the basis of identity expresses to its citizens the value that discrimination is ok. If discriminating against a particular group is ok, then hating that group is also ok. They — read: us — become an “other”, an “out-group”, something unfamiliar and different and, therefore, unwholesome. “Othering” someone is bad enough; institutionally blessed discrimination allows mental othering to be manifested in physical form. For a particularly heinous example, look no further than Vladimir Putin’s Russia.

Second, you are the object of stares, the center of attention, and, likely, the victim of snickers and taunts. Those who have taken to heart the cues of discrimination will single you out for harassment and hate. Even if they just stare, your sense of self is eroded by their inappropriate, rude, and condescending behavior, all of which has been condoned and invited by a pro-discrimination law.

And, third, the alternative shop may exist, but it is as if it exists to emphasize your otherness. The shop down the street is an alternative only because you were forced, by individuals taking advantage of a state law, to look for alternatives.

Libertarians and conservatives looking to sound less hateful talk a lot about choice and freedom. But their version of choice and freedom is empty and naturally favors the status quo. Of course we have the choice to go to another photographer. We also have the income to try to use market forces to punish a discriminating business owner. That way, the theory goes, the market will eradicate discrimination. But equality based on the ability to choose grants a life line to discrimination. It feeds it the unending stream of hate that will always exist on the right wing of any society and has the expressive effect of condoning more and more discrimination.

Equality is more than choice. It is treating every person with the full dignity they deserve. The Arizona law would not have done that. Mr. Will and the law’s other apologists don’t seem to care.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.