THE BLOG
02/27/2014 03:40 pm ET Updated Apr 29, 2014

SB 1062 Was Never About Religious Freedom

"Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion" -- The Virginia Act for Establishing Religious Freedom, authored by Thomas Jefferson

Just because someone touts something with fervor, conviction, and heighten decibel levels does not make it true any more than if one spoke beyond a whisper. Moreover, no amount of emotion can alter a misguided interpretation.

While the aforementioned observations would be widely accepted, they reflect one of the unintended consequences of a democracy. The right to free expression does not grant the right to change something in such a way that it fits exclusively within limited contours of one's preconceived notions -- for that is the dangerous terrain that ignores human dignity.

In the 19th century, American exceptionalism referred to the special character of the United States as a uniquely free nation based on democratic ideals, personal liberty, along with a distinctive geographical setting that made it difficult to invade. But today it is a watchword usually suggesting some divinely ordained superiority.

Those who espouse religious freedom the loudest in America, also seem destined to take the path of misinterpretation, while paradoxically clinging to constitutional virtue.

When the Arizona legislature passed Senate Bill 1062, which many feared would allow businesses the right to refuse service to anyone based on the business owner's religious beliefs without fear of lawsuits, would open the door to widespread discrimination, particularly against the gay and lesbian community was done so under the guise of religious freedom.

Not even the staunchest strict constructionist constitutional position can cite the original intent of the Founders to conclude that religious freedom was synonymous with legalizing bigotry.

What about interstate commerce? Can one's bigotry become so blind that they were willing to hurl Arizona back to a day that necessitated passage of the Civil Rights Act of 1964?

The myopic support for SB 1062 that clung to the belief that religious freedom trumped all became tragically blinded to any other consideration. Title 2 of the 1964 act specifically dealt with discriminatory practices in public accommodations -- was upheld by the Supreme Court. The court decided that a business, although it operated within a single state, could affect interstate commerce with its restrictive laws and was, therefore, at odds with the federal legislation that proved to be enabling of the Constitution's commerce clause.

The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Religious freedom is not a concept by which one can impose his of her private understanding of religion on others publicly who embraces different beliefs.

It is here that misappropriation leads to an unjust bill like SB 1062. The Constitution inconveniently makes freedom of religion, freedom from religion, and religious liberty an indispensable triad -- each cannot stand alone, nor can one support itself by violating one of the remaining two.

The cacophony surrounding SB 1062 is based on religious freedom. Such claims are at best a mendacious cover to obfuscate reality. The real misappropriation lies not in one's understanding of religious freedom, for that is merely a canard for justification.

Businesses advocating for religious freedom in order to discriminate against certain groups is akin to using the Second Amendment as justification to prohibit one from voting -- a non-sequitur. This was not an issue of religious freedom, but an opportunity to circumvent the commerce clause. Shouting religious freedom was an attempt to make the victimizer the victim in order to justify intolerance.

As Justice Harlan prophetically wrote in his dissent in the infamous Plessy v. Ferguson ruling:

"We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with the state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law."

Without claiming religious freedom there is no question that Arizona was openly headed back to the days of Plessy. What's more, had SB 1062 passed, there is a majority on the Supreme Court who demonstrate a judicial temperament reminiscent of the judges in Plessy who thought it plausible that "separate but equal" could co-exist.

Had Arizona Governor Jan Brewer not vetoed SB 1062, Arizona would have put into place a the thinly disguised notion of "equal" that would have been unencumbered by discrimination, by misappropriating an understanding of religious freedom that is foreign to our constitutional values.