Arizona Goes Rogue

By Victoria A. Brownworth

Originally published on Advocate.com September 06 2013 3:00 AM ET

There is no place like Arizona. Spectacularly beautiful, it is home to Grand Canyon National Park, one reason the state places seventh on the top 10 list of LGBT destinations. Arizona’s dramatic physical beauty has long drawn a diverse demographic from across the country that makes it an ideal place for libertarians—people who value their personal liberty, political freedom, and government at a distance.

But while Arizona’s geography can be taken at face value, its political landscape cannot. Despite having had more female governors than any other state, a high median income, a significant proportion of the nation’s Latino and Native American populations, and unparalleled growth, the state has taken a turn for the extreme, the oppressive, and even the unconstitutional, particularly during the administration of Republican Governor Jan Brewer. Having long presented itself as open to anything, Arizona is now more extremist flashpoint than libertarian mecca, its live-and-let-live ideals eroded by an invidious new politics that is deeply conservative. What’s happening to Arizona?

Arizona was defined by President Teddy Roosevelt’s conservation fervor. The original libertarian president designated the Grand Canyon and much of the rest of the state a protected area. Only 15% of the state is privately owned land; the rest belongs to the U.S. government and Native Americans. A full quarter of the state is reservations, home to nearly 20 Native American/First Peoples tribes, notably the Navajo, Hopi, and Apache. Native culture has influenced Arizona culture, as have the Mexican cultures of Sonora to the south and Baja California to the west. Phoenix has one of the largest collections of Native American art in the country.

Barely a century old, Arizona was the last of the contiguous states to be admitted to the union, on Valentine’s Day, 1912, but in the past decade it has become the fastest growing state. In 1950, Arizona had fewer than 1 million residents. In 2012, it had 6.6 million and is now the 15th most populous state.
Much of that growth is centered in Phoenix and the surrounding smaller cities of Mesa and Glendale. Despite daunting temperatures, Phoenix has become a magnet city in the Southwest, with a growth rate for 2013 higher than any other city in the country. A hub for industry—particularly a booming tech world—and a locus for conventions, the city’s population has  grown by nearly 24.8% in the last 15 years, according to U.S. Census figures.

Arizona has long presented itself as a libertarian paradise, home of the solidly centrist, anti-Big Government independent voter. The state even has an LGBT libertarian group, the Arizona Stonewall Libertarians, as well as numerous campus libertarian groups. And it has had more female governors than any other—three in succession, four total: two Democrats and two Republicans. Janet Napolitano, a Democrat, was governor until January 2009, when she was chosen by President Barack Obama to be the first female secretary of homeland security. Napolitano was succeeded by the current governor, Jan Brewer, a Republican, who was then Arizona secretary of state and became governor due to the state’s constitutional succession law when Napolitano resigned. The state constitution has no provision for a lieutenant governor.

Arizona Senator John McCain, the 2008 Republican presidential candidate, had been the independent voter’s dream candidate in 2000 when he lost the Republican nomination to George W. Bush. Many political pundits attributed his loss to that Arizonan libertarian attitude that did not fall in lock step with the Republican Party but was not quite moderate enough for much Democratic voter crossover.

McCain’s wife, Cindy, and older daughter, Meghan—both pro-gay rights, both supporters of the NOH8 campaign—exemplify that renegade libertarian streak. Cindy McCain uses her NOH8 photo as her avatar on Twitter. Meghan talks regularly and openly about her coterie of gay friends and has said LGBT rights is the cause “closest to [her] heart.” She was the keynote speaker at the 2009 Log Cabin Republicans’ convention, where she said, “I am concerned about the environment. I love to wear black. I think government is best when it stays out of people’s lives and business as much as possible. I love punk rock. I believe in a strong national defense. I have a tattoo. I believe government should always be efficient and accountable. I have lots of gay friends. And yes, I am a Republican.” But if a strong libertarian swath still slices through even the far-right Republican sections of Arizona, the state’s political tenor has lately veered from libertarian independence to a kind of rogue extremism. Examples of this trend speak to a worrisome shift from tough individuality to an explosion of xenophobia, homophobia, sexism, and racism.

In the four years that Brewer has been at the helm, the door has been opened wide for the politically extreme and has nearly closed shut for those who embody the long line of Arizona libertarians that includes former Supreme Court Justice Sandra Day O’Connor, Congressman Morris Udall, labor organizer Cesar Chavez, and singer Stevie Nicks.


Above: Border fence in the city of Douglas; protests against SB 1070; the state flag

Brewer’s governorship has been viewed nationally as racist, anti-woman, and homophobic. A photo of her yelling and pointing in Obama’s face when he visited the state went viral in January 2012 and seemed to exemplify an ugly attitude toward the progressive policies he represents and a lack of respect for the elected leader of the country.

Brewer’s leadership seems to harken back to that of one of the state’s best-known politicians, U.S. senator and presidential candidate Barry Goldwater. Not the softened, gay-friendly Barry Goldwater of the 1990s, but the rabid, extremist, Strontium-90-in-the-tap-water, Commie-conspiracies-everywhere Goldwater of the 1960s; the Goldwater who said, when accepting the Republican presidential nomination on July 16, 1964, “extremism in the defense of liberty is no vice” and “moderation in the pursuit of justice is no virtue.”

Brewer, a veteran of Arizona politics, was elected governor in November 2010 in a  landslide, suggesting that voters had no problem making the shift from Napolitano (who won her own reelection with a two-to-one vote margin over her GOP opponent) to Brewer. The big win also meant Brewer’s most controversial act as governor before her election-proper  had seemingly little impact on her candidacy. Her Democratic opponent, Terry Goddard, had campaigned on Brewer as extremist, yet lost in landslide; Brewer won by over 12% of the vote.

On April 23, 2010, Brewer signed SB 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. Under the act, anyone suspected of being an undocumented immigrant could be asked by police for residency documents at any time and for any reason. The law made failure to carry immigration documents a crime—a felony. Police could detain anyone they suspected of being in the country illegally—essentially a stop-and-frisk law for ID.

In addition, the law cracked down on anyone sheltering, hiring, or transporting undocumented immigrants. But the law also meant local and state police could pull over anyone they suspected of being undocumented, giving local law enforcement broad powers that had previously been the sole purview of federal law enforcement.

On the day Brewer signed the legislation, she said the law “represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” Obama spoke out against the law immediately—highly unusual for a president to do regarding state law — saying the Arizona law sought “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.”

According to the 2010 U.S. Census, 29% of the Arizona population is Hispanic or Latino; Spanish is the first language of 23%. In addition, Arizona has the third-largest population of Native Americans — sometimes confused racially for Hispanic/Latino. Ten percent of the country’s Native Americans live in Arizona.

Critics argued that Arizona’s “papers please” law — or “Brewer’s Law,” as it was dubbed — was blatant racial profiling, effectively making “driving while brown” illegal. Massive protests were held nationwide. Then-U.S. Secretary of State Hillary Clinton quickly announced that the law would be challenged by the Department of Justice, but challenges were unsuccessful. Last term, the U.S. Supreme Court declared the law constitutional. The law went into effect September 18, 2012 — “an important day for Arizona and supporters of the rule of law,” in the words of a triumphant Brewer. She has since added other anti-immigrant regulations to the state, fighting Obama’s DREAM Act and taking funds slated for education and applying them to border security. Under Brewer, border fences have gone up in various parts of the state, notably in Yuma.

The disconnect between libertarian Arizona and extremist Arizona is also keenly felt by women and LGBT people.

In April 2012, Brewer signed the nation’s most restrictive abortion law. The law disallowed any abortions over 18 weeks’ gestation — six weeks earlier than the 24-week threshold of viability. The time limitation meant that women could not undergo genetic testing via amniocentesis — done at 16 weeks — and still have an abortion should the test, which takes two weeks for results, show something dire. Many other abnormalities also only appear on sonograms after 18 weeks.

At the time Brewer signed the law, Elizabeth Nash of the Guttmacher Institute, the national agency for advancement of information on sexuality and reproduction, argued the blatant rogue attitude of the state: “The point is to make it so difficult to provide abortions that no one will do it. Arizona likes to thumb their nose at women. They take that as a badge of honor.”

Above: Governor Jan Brewer; LGBT Libertarians celebrate Pride; Maricopa County jail tent city

The law was finally ruled unconstitutional by a federal appellate court in May of this year. However, the attorney for Maricopa County, home to the state capital, is appealing the case to the U.S. Supreme Court, noting “the compelling and important interest Arizona has in protecting the health and well-being of expectant mothers from the dangers of abortions after 20 weeks and to protect children in the womb from needless and horrific imposition of pain.”

On July 23, lawyers representing Arizona asked a federal judge to dismiss a legal challenge to another restrictive Arizona abortion law. HB 2443 bans abortions based on the race or gender of the fetus. The law is being challenged by the NAACP and National Asian Pacific American Women’s Forum, who argue the law is unconstitutional and unfairly targets black, Hispanic, Native American, Asian, and Pacific Islander women, preventing them from obtaining abortions.

HB 2443 is the only abortion law in the country restricting abortions based on gender or race. Arizona Attorney General Tom Horne defended the law, saying it is actually civil rights legislation because it protects minorities and “disfavored genders.”

The NAACP argues that the law violates the equal protection clause of the 14th Amendment and is attempting to have the law permanently blocked. Lawsuits are ongoing.

Arizona’s previous anti-Big Government stance has increasingly become one of intrusion into citizens’ private lives — LGBT citizens among them. According to a November 2011 Public Policy Polling survey, Arizona voters were evenly split on the issue of marriage equality, with 44% supporting, 45% opposing, and 12% undecided. In addition, 72% of Arizona voters supported legal recognition of same-sex couples.

Those numbers were not reflected in the voting booths. Prop 102, also known as the Marriage Protection Amendment, passed overwhelmingly on the same ballot that elected Obama president. The 56% to 43% vote officially amended the Arizona Constitution to define marriage as between one man and one woman. Brewer was a proponent of Prop 102.

Yet Arizona allowed benefits for same-sex partners of state employees when then-Gov. Napolitano signed an executive order granting the rights. Then, in September 2009, Brewer vitiated Napolitano’s executive order and signed HB 2013, a new statute that made domestic partners of state employees ineligible for health benefits. The statute and an injunction filed against it in federal District Court were enmeshed in an ongoing lawsuit, Diaz v. Brewer, until June 27, when that case was decided by the U.S. Supreme Court—the day after their rulings on the Prop 8 and DOMA cases. The court rejected the appeal sought by Arizona, which means domestic partners of state employees are now eligible to receive benefits.

Brewer slammed the decision in a statement: “This case has never been about domestic partners, same-sex or otherwise. It has always been about the authority of elected state officials to make decisions with which we have been entrusted by the voters.”

Brewer has argued that the state’s fiscal crisis meant the state couldn’t afford to extend benefits to unmarried couples. Lambda Legal attorneys for the plaintiffs argued that the policy was discriminatory because heterosexual couples could marry, while same-sex couples could not.

Arizona’s burgeoning extremism is spilling across state borders into California — in legal matters at least. On the same day the Supreme Court ruled on the Arizona discrimination case, the Alliance Defending Freedom, a conservative Christian group dedicated to countering the “homosexual agenda” co-founded by anti-gay zealots Donald Wildmon (founder of the American Family Association) and James Dobson (founder of Focus on the Family), filed a lawsuit seeking an injunction against allowing marriages to continue in California after the Supreme Court’s ruling June 26 vitiating Prop 8.

Above: Costumed protesters (as an undocumented immigrant, Sheriff Joe Arpaio, a demon, and Brewer) oppose immigration laws at a 2010 rally in Phoenix; Meghan McCain’s NOH8 photo; Brewer’s confrontation of Pres. Barack Obama depicted on button

The ADF, headquartered in Scottsdale, was one of the sponsors of the Prop 8 ballot initiative and provided attorneys in the Hollingsworth v. Perry case. Justice Anthony Kennedy, who wrote the majority decision in Perry, dismissed the ADF’s request. But on July 12, attorneys for the ADF and Protect Marriage, another sponsor of Prop 8, filed for yet another injunction against the marriages, arguing that the Supreme Court ruling only applied to the couples who brought the case to the high court. Appealing to the California Supreme Court, ADF’s attorneys asserted that Gov. Jerry Brown had no authority to allow 58 county clerks to issue marriage licenses. The lawsuit demands an immediate ban on all same-sex marriages throughout California. California court justices had ordered expedited briefing from both sides on the validity of Prop 8, and written arguments were filed in August.

The ADF, which has branches in California, Tennessee, Georgia, Louisiana, Kansas, and Washington, D.C., in addition to Arizona, has also defended the Boy Scouts in several cases, including Dale v. Boy Scouts of America, in which they sought to keep gay youth out of scouting.

While Arizona creates a safe harbor for bigotry with ADF, vestiges of that elusive libertarian model survive. Arizona included sexual orientation in its hate crimes statute in 2008, although it did not include gender identity. In 2007, the state began issuing new birth certificates for transgender persons who had completed sex reassignment surgery. But the 2009 anti-discrimination law that protected on the basis of race, ethnicity, religion, and gender signed by Brewer does not include LGBT people.

In February 2013, the Phoenix city council voted 5-3 to broaden the city’s anti-discrimination ordinance. The ordinance prohibits discrimination in housing, employment, and public accommodations, such as restaurants and hotels. Businesses and individuals that don’t comply could be criminally prosecuted and face a misdemeanor charge, punishable by a $2,500 fine. Phoenix had previously banned discrimination based on race, sex, religion, national origin, age, and marital status, but not sexual orientation or gender identity. As a result of protests by conservative groups, the city council did allow for exemptions for religious organizations, small private landlords, senior housing and private clubs, among others, so it was not a sweeping change. Those supporting the addition of LGBT people to the city’s anti-discrimination ordinance argued that Phoenix would benefit from projecting an image that it welcomes diversity.

For months, one of the major issues in the ordinance battle was over the use of public restrooms by transgender people. Rep. John Kavanagh proffered a statewide bill in retaliation for the Phoenix ordinance; SB 1045 prohibited local governments from passing ordinances that could subject businesses to lawsuits or criminal penalties if they forbid a transgender person from using a restroom. Activists referred to the bill as “no loo for you.” He dropped the bill in June, but said he would reintroduce it next year.

One nagging question about Arizona is how the state transitioned so smoothly from Napolitano to Brewer. Brewer’s popularity signals the real truth about Arizona: The libertarian label may be more guise than reality, a cover for some of the state’s most egregious scandals, from the Keating Savings and Loan debacle of 1989 (in which John McCain was implicated but ultimately cleared) to the refusal to adopt Martin Luther King Jr. Day as a national holiday (from 1986 until Arizona voters adopted in it 1992 after a tourism boycott) to the rogue and blatantly racist Sheriff Joe Arpaio, who has been in office for 21 years and made prisoners in his prisons wear pink underwear and striped jumpsuits and eat moldy food. In 2011, Sarah Palin, in what many believed to be a precursor to her considering a run for national office, purchased a $1.7 million home in Scottsdale. Of all the lower 48 that she might have chosen, why Arizona, if not for the political climate?

Is it possible Brewer’s popularity actually signals Arizona’s fealty to independence? Brewer herself embodies those bizarre contradictions that define Arizona; in January she informed her legislature that she intended to expand Medicaid in keeping with Obamacare, infuriating the Republican establishment. But she insisted that lawmakers pass a plan to “maintain coverage for those in need, honor the will of Arizonans who have twice voted to expand Medicaid, save our General Fund, keep Arizona tax dollars in Arizona, and protect rural and safety net hospitals.”

Above: Supporters of Arpaio; presidential candidate Gary Johnson at ASU, a “papers please” arrest

Is this the same governor who omitted lesbian and gay couples from the state’s health benefits plan and then argued when the Supreme Court said she was being discriminatory?

Brewer’s popularity — and her single-mindedness — haven’t gone unnoticed. In their June 14 issue, Josh Barro of Business Insider called Brewer “the most interesting politician in America,” suggesting that she “pokes conservatives in the eye” to get what she wants done.

Brewer intends to poke quite a few eyes — notably those of Democrats and third-party candidates like Libertarians. She took another giant step toward restrictive policies on June 19, when she signed an omnibus election law bill, HB 2305, which contains a provision that will dramatically increase the difficulty for members of minor parties to get on their own party’s primary ballot. The bill contains an exceedingly stringent signature requirement for third-party candidates —aimed at, critics claim, restricting third parties completely.

The bill has other provisions that are strongly opposed by the Democratic Party and various voting rights organizations, as well as many Mexican-American leaders and libertarians. It would prevent groups that aid Hispanic voters from collecting an individual’s ballot and dropping it off at a polling place, which is viewed as yet another racist attack from Brewer on Hispanics.

Who will win the war for the heart of Arizona — the rogue extremists like Brewer, or the libertarians like Gary Johnson, one-time Republican and now titular leader of the nation’s Libertarian Party?

Johnson, the 2012 Libertarian candidate for president and former governor of neighboring New Mexico, has made Arizona his new battleground. A supporter of marriage equality, Johnson announced in late June that he would be gathering signatures via his organization, Our America Initiative, to file a state constitutional amendment to overturn Arizona’s ban on same-sex marriage. “We want to seize the momentum [the SCOTUS] decision will create, and doing so in Arizona, a ‘conservative’ Western state, will send a message of individual freedom to every corner of the nation.” he said in a statement.

Individual freedom is definitely where Arizona started, but what will it take to lead the state back there once more?


Victoria A. Brownworth is an award-winning, Pulitzer Prize-nominated journalist and author. She is a frequent contributor to The Advocate and SheWired and is a blogger for the Huffington Post.