Yes, the Anti-Gay Bill Was Vetoed, but Arizona—Like Many States—Still Discriminates Against Gays

Expanding the LGBTQ Conversation
Feb. 27 2014 2:54 PM

Arizona’s Anti-Gay Bill Was Vetoed, but the State—Like Many Others—Still Discriminates Against Gays

140085285-arizona-gov-jan-brewer-stops-to-talk-to-the-news-media
Arizona Gov. Jan Brewer.

Photo by Chip Somodevilla/Getty Images

Wednesday brought exciting news from Arizona. Gov. Jan Brewer vetoed SB 1062, the bill that would have permitted religious individuals and businesses in the state to discriminate against gay and lesbian individuals and same-sex couples.

In this case, the political process worked, as a huge national outcry arose in the short time since the bill passed both houses of the Arizona legislature. Business leaders including Delta Air Lines and Apple, athletic organizations including Major League Baseball and the Super Bowl host committee, and politicians including Mitt Romney, Newt Gingrich, and both Republican senators from Arizona spoke out against the bill. Fox News also got in on the act, with several of its highest-profile commentators arguing against the bill. Even three of the Arizona state senators who voted for the bill when it was before them urged Gov. Brewer to veto it.

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The national spotlight on the issue was intense. The overwhelming American consensus was that discrimination is morally repugnant. The governor agreed, and she vetoed the bill.

This is certainly cause for celebration, but not as much of a celebration as some may think. Gov. Brewer’s veto was important, but it accomplished only one thing: It maintained the status quo in Arizona. And the status quo in Arizona allows discrimination based on sexual orientation in almost every aspect of life.

Currently, there are no federal laws protecting gays and lesbians from discrimination. Some states have stepped in to fill the gap, but Arizona is not one of them. Arizona allows discrimination against gays and lesbians in employment, public accommodations, housing, hospital visitation, and education. Some cities within Arizona have their own local laws that prohibit some of these practices, but there are no statewide laws.

Arizona is not alone. In fact, the numbers are quite staggering. Twenty-one states prohibit discrimination based on sexual orientation in employment; 21 prohibit discrimination in public accommodations; 21 prohibit it in housing; 26 in hospital visitation; and only 13 in education. (All stats courtesy of the Human Rights Campaign.) These numbers indicate that there are huge gaps in anti-discrimination laws in this country, especially considering that an even smaller number of states also protect against discrimination based on gender identity.

What’s most amazing about these numbers is that polls show overwhelming support for anti-discrimination laws. To most people, it’s as simple as Gov. Brewer put it on Wednesday: Nondiscrimination is a “core American and Arizona value.” And yet, the law has not yet caught up with public opinion.

Most people don’t realize that American law permits discrimination. A 2011 poll found that 87 percent of people believe that federal law already prohibits discrimination against gays and lesbians in employment. Only 5 percent know that it is legal.

On the heels of what happened in Arizona this week, the national conversation about this issue cannot stop. Right now we have the spotlight and the momentum. People need to demand that discrimination based on sexual orientation be outlawed in every state in every walk of life.

Thankfully, there are many advocacy groups that have been working on these issues for a long time, and progress is close. The Senate has passed the Employment Non-Discrimination Act (ENDA for short), and it’s awaiting a vote in the House. John Boehner is holding it up, but increased pressure on him, like the pressure on Gov. Brewer, might succeed in freeing it. In lieu of ENDA, President Barack Obama has considered an executive order that would prohibit discrimination in employment by federal contractors. He has so far been hesitant to issue it and has said he would prefer ENDA to pass through Congress. But if the national spotlight turns from Arizona to the federal level, maybe he would sign this order, as he did recently when raising the minimum wage for federal contractors. Other bills throughout the states could also benefit from this national conversation about sexual orientation discrimination. They are out there waiting for attention.

As important as it is to ensure that no other bills like Arizona’s become law in other states, it’s even more important to enshrine in law that discrimination is not allowed.

David S. Cohen is an associate professor at the Drexel University School of Law. He is co-author of a forthcoming Oxford University Press book about anti-abortion terrorism and co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter.

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