Inside The First Amendment - With stroke of a pen, Arizona governor changes everything

 Arizona Governor Jan Brewer’s veto last week of SB 1062 — a controversial “religious freedom” bill few Americans read and even fewer understood — may well have been a defining moment in the history of gay rights in America.
Post SB 1062, it will be politically difficult, if not impossible, to pass laws that are perceived to allow discrimination on the basis of sexual orientation — even to protect religion, even in red states with Tea Party favored governors.
Brewer’s veto — urged by business leaders, both of the state’s Republican Senators, and even several legislators who voted for the bill in the first place — is symbolic of the new zeitgeist in America: Like it or not, it’s no longer economically, socially or politically feasible to be seen as a state hostile to lesbian, gay, bi-sexual and transgender people.
This is huge.
It now appears that discrimination against LGBT people is fast approaching the same level of unacceptability as racial discrimination for a growing majority of Americans.
What SB 1062 supporters called “religious freedom,” opponents successfully re-framed as “discrimination” — drawing heavily on the language and imagery of the struggle for racial equality.
Would Arizonians, for example, allow businesses to refuse service to inter-racial couples on religious grounds? If not, what is the rationale for treating discrimination against LGBT people differently in places of public accommodation?
A much-re-tweeted tweet from radio producer Chris Lavoie captured the winning message linking past civil rights struggles to the present battle: “Dear Arizona, In case you missed it, we’ve already had this conversation. You don’t get to decide who sits at the lunch counter. Love, America”
Game over.
What was lost in the din of charge and counter-charge was the actual content of SB 1062. Contrary to most media coverage, this was not a “turn-away-the-gays” bill that would have allowed business owners to refuse service to LGBT people. Instead, the law would have amended the existing Arizona Religious Freedom Restoration Act to cover religious freedom claims by business owners.
As nine legal scholars explained in a public letter to Gov. Brewer, nothing in the amendment would say who wins in cases when a business owner asserts a religious freedom claim:
“The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest.”
In other words, such “free exercise” claims would likely be rare (“substantial burden” is a high bar) and would often fail in the face of a compelling state interest.
If the media and public failed to grasp the nuances of the proposed law, proponents of SB 1062 have only themselves to blame. Recall that the law was proposed in the first place as a response to cases (in other states) where business owners providing wedding services turned away same-sex couples on religious grounds. But rhetoric from many of the bill’s supporters about the dangers of the “homosexual agenda” drowned out legitimate arguments about protecting religious conscience in limited circumstances.
Ironically, discrimination against LGBT people is already possible in much of Arizona since only a few cities in the state have anti-discrimination laws that include sexual orientation.
If Arizona legislators want to garner public support for expanding protections for religious conscience, they would be wise to start by passing legislation prohibiting discrimination on the basis of sexual orientation. Then they might gain the credibility and trust needed for a narrowly tailored law exempting religious small business owners from serving same-sex weddings when it violates their conscience.
That’s unlikely to happen now. The bitter SB 1062 debate has poisoned the well for any effort to seek common ground that could protect LGBT people from discrimination while accommodating religious convictions in limited circumstances.
In her veto message, Gov. Brewer said: “Religious liberty is a core American and Arizona value; so is non-discrimination.”
The sad lesson of the battle over SB 1062 is that in the current climate of name-calling and fear mongering, few people on either side are willing to work together to uphold both.

Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute, 555 Pennsylvania Ave., N.W., Washington, DC 20001. Web: Email: This email address is being protected from spambots. You need JavaScript enabled to view it. .

Savor those Royal parent-child moments

Bobs Column - The B SideLast weekend, my daughter put the finishing touches on her first high school research paper.
I should say “we” put the final touches on the paper, as I was called on to help in a big way. I didn’t have much choice. I have an automatic out when it comes to math and science—my poor performance in those disciplines is one of the reasons I’m a writer. But when it comes to writing assignments, my assistance is usually sought.
The truth is, I’m happy to help. The paper was a major undertaking for my daughter, who did not experience a similar project in middle school. A retired school teacher friend of mine always assigned an 8th grade research paper to his students. I now see the wisdom of his decision. But for Brigid, the research paper process was brand new and a little intimidating. There is the thesis, sources, notecards, an outline and rough draft. Each step led to the final paper, which represents a big percentage of her final English grade.
We spent a large chunk of a recent weekend searching through books trying to nail down a thesis and wrap our brains around the subject matter. She was convinced—or so it seemed—at one point that the paper would be a disaster. Fortunately, it came together nicely in the end.
The time spent helping Brigid reminded me of the process I followed when I wrote similar papers for literature classes at Moraine Valley. I proudly told my daughter that my paper was handed out to students in another class as an example of how to properly write a research paper. I was the man when it came to those papers. I spent hours in the library looking for the sources to support my thesis. Then I wrote the paper in longhand on a legal pad, and my mother was kind enough to type it of a Royal manual typewriter.
That was 30 years ago. My mom was a secretary. She could type at a pretty good clip. She sat at the dining room table after a full day at work and typed my papers. Brigid doesn’t need a typist. She needs me to guide her, offer ideas, edit her drafts. Either way, a parent is happy to help.
I thought about my mom and the old typewriter last week because she died one year ago last week after a long struggle with dementia. The woman who could type, but also loved to read, knew about great authors and had genuine interest in my research papers and subsequent journalism career, hardly knew who I was when she passed. Dementia is a horrible illness and one that doesn’t get nearly the amount of funding or attention as do other illnesses.
When she died, my family and I were relieved more than anything else. She lived with us for the final two years of her life. It was rough at times, but I don’t regret it. My wife and children deserve much recognition for the time spent and the sacrifices made in order to care for her. It’s difficult to remain patient and not lose your temper at times when caring for someone suffering with dementia.
One year later, I miss my mom more than in the days immediately after she died. Ditto for my dad, who died nearly two years ago. I once shared an office with a guy who was genuinely surprised that I spoke to my dad every day. He’d go for months without chatting with his parents, he once told me. He was even out of the country once without their knowledge, he bragged. That was incomprehensible to me.
I enjoyed talking to my parents, and in an odd sort of way I still sought their approval even though I was leading my own life with a wife and children. What they though mattered. My dad and I both loved sports and laughed about many of the same things. I miss checking in with him on numerous events, including news about his three grandchildren, recent changes in my life and upcoming opening day.
Moms and dads. They’re invaluable. They take care of us and we take care of them. At least that’s the way it’s supposed to be. Once they’re gone, we have fond memories, including a loving woman and her Royal manual typewriter and man whose ear and advice I really miss.

Inside the First Amendment FCC study: Necessary report or ‘national news nanny’?

  • Written by Gene Policinski

  The First Amendment establishes our right to a press free from intrusion, regulation or intimidation by the government.
  As to a right to be free from questions by a national “news nanny,” it’s all in how you view the ultimate intent.
  A few weeks ago, a Republican appointee to the Federal Communications Commission kicked up a fuss — particularly among conservative groups — about a planned FCC study of how journalists make news decisions.
  Commissioner Ajit Pai wrote an Op-Ed column Feb. 10 in The Wall Street Journal saying the commission’s “Multi-Market Study of Critical Information Needs,” or CIN, meant “the agency plans to send researchers to grill reporters, editors and station owners about how they decide which stories to run,” starting with a pilot program in Columbia, S.C.
  “The purpose of the CIN,” Pai wrote, “ ... is to ferret out information from television and radio broadcasters about ‘the process by which stories are selected’ and how often stations cover ‘critical information needs,’ along with ‘perceived station bias’ and ‘perceived responsiveness to underserved populations.’”
  Noting that the FCC has the power to renew or deny broadcast licenses, Pai wrote that the voluntary study was anything but that. He wondered why the study also included newspapers, over which the FCC historically has had no authority.
  As happens in today’s polarized political environment, liberal observers took a different tack, saying the study was prepared with the help of USC’s Annenberg School for Communication and Journalism, and was simply part of an ongoing FCC obligation to periodically report to Congress on how well the public gets information it needs, and what hurdles may exist to improving that process.
  On Feb. 21, the FCC backed away from its plan. “Any suggestion the Commission intends to regulate the speech of news media is false,” FCC spokeswoman Shannon Gilson said. A revised study will be conducted, but journalists and news media owners will not be asked to participate.
  So: An outright assault on a free press — with, as the more florid claims said, official “news monitors” in every newsroom? Or a benign bureaucratic survey that began more than two years ago, created in cooperation with the very journalists it was intended to examine?
  Lest we forget, there’s nothing in the First Amendment that protects the press from questions, criticism and review, by anybody. But when government does so, it merits extra caution and concern — if not claims that that “media sky is falling.” The government“s record on good intentions and the news media can provide enough cause to worry.
  Just seven years after the Bill of Rights, with its First Amendment, was adopted, Congress approved and President John Adams signed a law that provided for prosecution of editors critical of either one. Within a few years the law was allowed to expire, having lost public support after more than a dozen journalists were jailed under the pretense of inciting war with France, which some saw as a mere excuse to eliminate political opponents.
  Attempts by the government to restrain the press prior to publication have, through the years, ultimately have been ruled unconstitutional by the U.S. Supreme Court, notably in the so-called “Pentagon Papers” case in 1971 when the Nixon administration tried to prevent publication of a secret report on U.S. involvement in Vietnam.
  And the FCC itself created a prime example of good intentions-gone-wrong with the history of its Fairness Doctrine, enacted in 1949. The commission was concerned then about the concentration of news outlets in a few hands, and the doctrine required broadcasters to provide information and varied views on matters of public interest.
  Several decades later, it was evident virtually all electronic news outlets chose the safest path to avoid violating the doctrine: Providing no opinion. Once common “broadcast editorials” disappeared. Discarded by the FCC in 1987, the doctrine was made further obsolete by the proliferation of cable TV stations, and by the diversity of outlets and information available on the Internet — which some says makes the entire commission an anachronism and unneeded.
  Still, surveys show that broadcast TV remains the largest single medium by which the public gets news — and both liberals and conservatives find reason to regularly criticize all or part of that news media. Newspapers clearly face financial hurdles — and tens of thousands of jobs in journalism have been lost in the past 20 years.
  Yes, how well the news media are meeting their obligation to readers, viewers, listeners and users is a worthy subject of study — and is regularly, by non-profit organizations, private media monitoring groups and an ever-vocal host of individual critics.
  Regulators doing that very studying should raise caution, if not the panic voiced by some commentators. Might not a “study of the studies” and reviews of oft-expressed criticism be more efficient and just as informative for that portion of the FCC’s examination of the news media today?
  In addition to providing its critics with an easy target, the pilot FCC study also provided its own benediction: “Go forth and CIN no more.”

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

Brewer, Garcia stand tall as champions of equal rights

Bobs Column - The B Side Jan Brewer and Orlando L. Garcia may not be household names, but the decisions they made Feb. 26 were monumental, and both individuals should be lauded as champions of equal rights who had the courage to take a stand against those who would deny those rights to some based on sexual orientation.
  Brewer is the governor or Arizona, the state where the Republican-controlled legislature amazingly approved a bill that would have given business owners the right to refuse service to gay people and others on religious grounds. Thankfully, Brewer did not let that happen.
  The Republican governor was under immense pressure to veto the legislation from business owners, who viewed the proposal as a financial disaster and a serious blemish to the reputation of a state that doesn’t need any more bad PR.
  I have no idea what motivated Brewer to veto this ridiculous legislation, but I’d like to think that one her first thoughts was to reject it simply because it was hateful and intolerant.
  Think about it for a moment. The legislation would have permitted a business owner who believed that marriage should be limited to a man and a woman to refuse goods and services to gay people. That’s the kind of forward, progressive thinking I’d be damn proud of as an Arizona resident.
  Of course, this is nothing new for the Grand Canyon State, which opposed making Martin Luther King Day a state holiday—a move that cost it the 1993 Super Bowl. The state also is known for prejudicial immigration laws.
  Let’s understand something. Gay people deserve the same rights and civil liberties as anyone else, including the right to marry and raise children. They’ve fought for years for these rights, and no battle waged by intolerant folks who hide behind religion to justify their cause will hold them back at this point. That’s difficult for some people to appreciate.
  But time moves on, as does society—most of society, anyway. Try to recall pictures from the 1960s of separate drinking fountains for black people or television footage of black students being denied admission to a southern university. Those images seem bizarre 50 years later. But at the time, that sort of bigotry made good sense to many people. How will today’s discriminatory behavior against gay people appear 50 year from now? Bizarre, I hope.
  The annual gay pride parade commemorates the anniversary 1969 Stonewall riots, an uprising between New York City youth and police officers following a raid of the Stonewall Inn, a popular gay bar. Four decades later, the NBA has welcomed its first openly gay player, and Missouri football player Michael Sam is expected to be a high pick in this year’s NFL draft.
  Meanwhile, there are those in Arizona who prefer things the way they’ve always been. The legislation, they argued, was designed to protect their religious freedoms. Brewer’s response was spot on. “Religious liberty is a core American and Arizona value,” the governor said, “so is no discrimination.”
  Brewer’s actions should not overshadow those of Garcia, a federal judge in Texas, who struck down the state’s ban on same-sex marriage. Garcia ruled that the laws restricting marriage to a man and a woman violated the United States Constitution. That’s a major victory in a state like Texas.
  Garcia wrote that an amendment to the state Constitution that Texas voters approved in 2005 defining marriage as between a man and a woman — and two similar laws passed in 1997 and 2003 — denied gay couples the right to marry and demeaned their dignity “for no legitimate reason,” the New York Times reported.
  His ruling is the latest in a series of decisions overturning bans or lifting restrictions on same-sex marriage in several states. Virginia’s ban was recently overturned and Kentucky was told to honor same-sex marriages performed in other states. In Oklahoma, the state’s amendment barring same-sex marriage was recently deemed unconstitutional.
  You see, the resistance is waning. Open-mindedness and acceptance is surpassing narrow-mindedness and intolerance. Jan Brewer and Orlando Garcia are just two of the reasons why.

Inside the First Amendment - A ‘flash’ of insight on just how free is our free speech

  • Written by Gene Policinski’

  If you associate the First Amendment more with the rarified air of constitutional debate, or powdered wigs and colonial days, try thinking in more modern terms — say speed traps and blinking headlights.
  For most of us, much of the Bill of Rights comes into play infrequently, if ever. A few examples: According to a 2013 survey, only one in three U.S. households are home to a firearm (Second Amendment). And thankfully, protection in our lifetimes against illegal search and seizure (Fourth) or self-incrimination (Fifth) will be more legal theory rather than active tool.
  But the First Amendment — the nation’s “blue collar” amendment — goes to work every day alongside us. We regularly, if not daily, use the freedoms of religion, speech, press, assembly and petition to worship as we will, to speak our minds freely, and to ask our elected leaders to make changes on matters of public interest.
  There are disputes over the way we apply those core freedoms, sometimes reaching the U.S. Supreme Court. But at other times, the legal collision and decision are more down-to-earth and closer to home. Case in point, Michael J. Elli challenged a city ordinance in his hometown, Ellisville, Mo., that permitted police to ticket drivers who flashed headlights to warn oncoming motorists approaching a speed trap.
  About 2:50 p.m. on Nov. 17, 2012, Elli flashed his headlights after passing police. He was stopped and ticketed. Elli faced a $1,000 fine, and later was warned by a municipal judge about a charge of “obstruction of justice.”
  The city dropped the prosecution after Elli pled not guilty, and later said it ordered police not to enforce the law. Nonetheless, Elli proceeded with a federal lawsuit. In early February, U.S. District Judge Henry Autrey issued an order to make certain he stopped the “chilling effect” on citizens exercising their First Amendment right of free speech.
  Judge Henry’s ruling makes the important point that Missouri law forbids someone from warning of “impending discovery or apprehension,” but specifically excludes telling someone to comply with the law. In other words, communicating “slow down” is protected speech because it encourages safer driving.
  An attorney for Elli from the American Civil Liberties Union, Tony Rothert, told The Wall Street Journal’s Law Blog that there was a higher principle involved, too: With rare exception, the police shouldn’t be stopping or prosecuting people because of the content of their speech.
  As it happens, along with headlight warnings, other courts have protected a range of “speech,” from the spoken word to expressive conduct, where government may not prosecute.
  While it may be rude to do so, and may well mean a risk of arrest before later exoneration, courts have said people can confront police officers using insulting words, hand and finger gestures to a degree more than they could similarly challenge other “civilians.” In City of Houston v. Hill, in 1999, the U.S. Supreme Court noted “a properly trained officer may reasonably be expected to exercise a greater degree of restraint than the average citizen” to such expressive conduct.
  The point is not that courts are encouraging us to be insulting or disrespectful to police or other authorities — rather that government, from the lowest to highest official in the land, cannot override our right to speak freely without presenting good reason rooted in law.
  In Houston, Justice William J. Brennan wrote that “the right of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. ... The First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”
  We traditionally celebrate freedom with fireworks on July 4, Independence Day. Maybe an occasional flick or two of the high-beams is in order, too.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .