Tuesday, March 18, 2014
“The Rhetorical Victory of SB 1062”
Written by Patrick Fadely (English) and Dave Morris (English)
Arizona Senate Bill 1062—the so-called “Anti-Gay” or “Right To Discriminate” bill vetoed by Gov. Jan Brewer last month—has largely faded from the news cycle, even as versions of the same legislation keep popping up across the country. Promoters of the bill claim it is a reaction to incursions of the secular state into the religious consciences of citizens, as exemplified by the Colorado court who admonished a business for discriminating against lgbt customers. But such explanations, which insist that the law is a defensive measure setting forth the “terms of surrender” for defeated opponents of same-sex marriage elide the bill’s exclusionary force. At the same time, critics of the bill have focused narrowly on its discriminatory intent, without recognizing the full range of issues at stake. SB 1062 and other bills like it are more capacious in scope than previous discussions have allowed. We believe now is an appropriate time for a more thoroughgoing examination of the theoretical stakes of attempting to redefine the legal and cultural concepts of religious freedom.
SB 1062’s attempt to change the definition of religious freedom joins a larger effort by conservative activists to redefine secularism in the United States. Secular freedom relies, according to Talal Asad, on identification of citizenship in the nation-state as transcending religious differences. This transcendent identification theoretically allows people with a wide range of religions to participate in public life and enjoy the protections of the state. Secularism serves to mediate and construct this transcendent citizenship. This is problematic, since secularism as a global project relies on the production of conceptual binaries between free and non-free and West and non-West. It also entails the violent imposition of state structures that guarantee particular definitions of freedom of religion. In a 2003 interview, Asad argued that “[i]t is precisely in a secular state—which is supposed to be totally separated from religion—that it is essential for state law to define, again and again, what genuine religion is, and where its boundaries should properly be.” The secular idea requires the state to define religion and combat threats to freedom of religion. Because this power to define carries legal and cultural implications, any interest seeking to normalize particular religious subjectivities at the expense of others works in part through the state’s definition of a threat to freedom.
Thus, Asad brings to light a paradox: freedom of religion provides a discourse through which certain forms of religiosity are inevitably repressed. Beyond its pointed attempts to discriminate against lgbt people, the bill helps to define the public presence of a variety of cultural others—sexual, religious, national, racial, and so on—as threats to religious freedom. In this sense, Arizona SB 1062 might be usefully placed alongside Arizona SB 1070 and a set of “anti-Shariah” laws proposed in several state legislatures.
What is at stake in such legislation is not so much the ability to discriminate against any one group, but rather an attempt to redefine religious freedom, and hence to reorient secularism, in order to enshrine a specific form of fundamentalist Protestantism. SB 1062 offered two key revisions to its predecessor, the Religious Freedom Restoration Act (RFRA): first, it made clear that religious freedom can be impinged not only by the secular state, but also by any “nongovernmental person seeking the enforcement of state action.” This implies that any individual seeking the protection of, for instance, the 14th amendment, potentially embodies the secular state and its intrusion into religious liberty. The second revision is even more radical: it enlarges the scope of those who can claim that their religious freedoms have been impinged. Under the RFRA, the definition was limited to any “religious assembly or institution”; SB 1062 would have expanded this to “any individual, association, partnership, corporation, church, religious assembly or institution or other business organization.”
The bill thus suggests that any individual may act as a proxy for the secular state’s incursions into religious freedom, and any individual may claim to be a representative of their religious institution as a whole when confronted with the mere presence of such a person. The bill’s language seeks to transform any encounter between individual citizens into a scene of potentially actionable religious conflict, regardless of whether the terms of that conflict are explicitly religious. Conservative critics of the bill argued that this deeply individualistic view of religious freedom might allow a Muslim cab driver to refuse service to unaccompanied females, or people with dogs, or people drinking alcohol. Such objections, whose Islamophobic tenor is obvious and telling, are based on the misleading claim that the bill’s defense of religious freedom would be symmetrical. In fact, though, the bill would have introduced a host of subjectively defined criteria (the “sincerity” of a belief, for example) which are already adapted to Protestant conceptions of religiosity. Proving that religious freedom has been violated under this definition would depend on whether a given belief was readily culturally legible. In the current political and media environment, a fundamentalist objection to lgbt people is readily construed as “sincere,” whereas the hypothetical objections of the hypothetical Muslim cab driver would face more strenuous scrutiny.
Upon vetoing the bill, Governor Brewer argued that the law does not respond to particular cases or well-articulated needs. The law is not an example of jurisprudence developing in response to changing cultural conditions raised in actual cases; it’s a pre-emptive attempt to reverse the potential opening of the public sphere to full (or fuller) citizenship for lgbt citizens and for non-whites and non-Protestants.
For these reasons, we hesitate to read Brewer’s veto as more than a temporary, legal victory. In fact, given the particular form of political pressure to which Brewer responded, we’re prepared further to read it as a rhetorical victory for those seeking to reverse gains made by civil rights activists over the course of the 20th century. By making civic equality an issue of religious freedom, conservative lawmakers have successfully pulled the conversation to the right—the argument is now between religious conservatives on one hand and neoliberal privatization on the other.
Despite protest from the left, the debate over SB 1062 became largely a debate between economic and social conservatives. Much has been made of the pressure placed on Brewer by prominent figures like John McCain and Mitt Romney, in addition to large corporations like Apple, American Airlines, and the National Football League. This position, however, should not be read as a sign that these corporations and individuals endorse gay rights. The NFL, for example, seeks customers across as many identity groups as possible, but this differs from a desire for a just and open public sphere. It is rather a desire for businesses to have total freedom to restructure the public into an assembly of semi-private consumers who substitute economic liberty for civic power. The pro-business argument against SB 1062 posits that markets, not governmental institutions, should be the guarantors of religious liberty. Global capital brings people together (to watch football), but it can’t guarantee anything like civic freedoms, only the liberties that economic privilege provides.
Conservative supporters of the bill have frequently protested that it does not intend to discriminate against lgbt citizens. In a sense, they’re right: the bill is much more about normalizing and protecting a particular form of Protestant religious belief. It legitimates the exercise of personal prejudice on religious grounds if and only if those prejudices fit within a normative Protestant definition of “sincerely held” religious conviction. The bill thus exemplifies a broader effort to bend the secular toward a socially conservative agenda.