02/27/2014 11:25 am ET Updated Apr 28, 2014

Arizona's 'Hate Bill:' A Defense?

Well Arizona, we've dodged a nasty little squabble. Our governor has dealt a blow to SB 1062, what CNN helpfully dubbed the "Anti-Gay" bill and others call a "Hate Bill." This horrid little piece of legislation would have ostensibly given license for business owners to discriminate as long as they could claim they were doing so for "religious reasons," including refusal of service to gays and lesbians. That bill is now dead, and Arizona will "... remain open for business to everyone" according to the ACLU.

Or will it?

The messaging in all this kerfuffle is mixed: Was this, we wonder, a bid by radical bigots to co-opt the state in sheltering its prejudices? Is the bill's veto a resounding rejection of a perceived right of private business, the option to choose whom to serve? Should we as a society tolerate intolerance?

If you are interested in a liberal society, ruled by laws instead of the vagaries of political opinion, I'm afraid we cannot deny that something has been lost in the public shout-down of this proposed law.

As is so often the case with hyper-sensationalized debates, the facts aren't nearly as sexy as the implications. Senate Bill 1062 was pilloried mostly for being discriminatory towards homosexuals (though it's not technically mentioned or even hinted at in the bill). Yes, same-sex coupledom is in the background. A significant prompt for the bill was a case in New Mexico in which a photography business chose to refuse service to a gay couple on religious grounds. The couple sued, and the business lost under New Mexico law, which considers all private business as providing "public accommodation."

Read that again: a private business, which had chosen to spend its own money and time to provide a service on the open market, was forced by the State to provide this service to someone it did not wish to. This legal position (shared by only a minority of states), is itself a rather remarkable proposition; one that is fundamentally illiberal. New Mexico, if it were consistent, would force a Holocaust survivor to serve a neo-Nazi, or a gay businessman to serve a vicious homophobe. Arizona was attempting to distance itself from this, establishing itself (ironically enough), as a liberal state by ensuring that private business is indeed that; private. I shed few tears over the death of this bill, for Arizona thankfully isn't anywhere near the madness of "public accommodation" states, but I'm afraid an important liberal tenet has been damaged in the misinformed public outcry.

Voltaire is often misquoted as saying, "I detest what you are saying, but I will defend to the death your right to say it." Misquoted or not, the principle is indeed one he would ascribe to, for he promoted the singular necessity for liberty; even including the freedom to act in detestable ways. Modern private business is essentially free from bigotry because modern private business must reflect the values of the society it serves. If Whole Foods suddenly chose to refuse service to whites (or blacks), or any other artificial and absurd distinction, you and I would stop going. Moreover, I would join the boycott line and starve the loathsome bigots from their racist holes... But I would defend to the death their right to make that ignorant, asinine decision in the first place.

Discrimination by race, gender, sexual orientation, religion or any of the thousand other ways we foolishly create divisions is deplorable. Using the power of the state to bludgeon what you consider "ugly" behavior, however, is inexcusable.

Now, can we have our Super Bowl back?