Last week, the Kansas House passed a bill that would basically provide legal protection for religion-based anti-gay discrimination.
On Wednesday, the Kansas House passed HB 2453, which offers legal protection to individuals and businesses that refuse service for same-sex couples, specifically those looking to get married. Under the bill’s language, individuals, businesses and government employees would be immune from legal reprisal for refusing service if they have “sincerely held religious beliefs” opposing customers’ orientation. HB 2453 was approved by the Kansas House 72-49 and is set to move on to the state senate.
Note: it has died in the Senate. For now. Religious institutions themselves have always enjoyed a ministerial exception to anti-discrimination law, an exception that SCOTUS recently upheld 9-0. This law and others like it would be the first to grant the exception to private individuals and businesses.
According to the text of the bill, HB 2453 would prevent any legal action against groups or individuals who “provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits” to couples.
This measure was cast by its supporters as a move against discrimination. Specifically, discrimination against those with religious objections to homosexuality. In fact, a number of states are now considering these measures.
A few thoughts:
First, I don’t buy the idea that anti-LGBT-discrimination laws are themselves a discrimination against people of faith. There is no law that forbids someone with anti-gay beliefs from living anywhere or doing business with anyone. They aren’t confined to anti-gay ghettos. They are being forced to do business with someone whose lifestyle they object to. That’s bad enough; let’s not pretend that not being allowed to discriminate is a form of persecution.
Supporters of the bill argue that they are being forced to “celebrate” a union they see as immoral. But Kristin Powers picks that part:
It’s probably news to most married people that their florist and caterer were celebrating their wedding union. Most people think they just hired a vendor to provide a service. It’s not clear why some Christian vendors are so confused about their role here.
Whether Christians have the legal right to discriminate should be a moot point because Christianity doesn’t prohibit serving a gay couple getting married. Jesus calls his followers to be servants to all. Nor does the Bible call service to another an affirmation.
Adam Hamilton, pastor of the United Methodist Church of the Resurrection, the largest church in Kansas, pointed out to me what all Christians should know: “Jesus routinely healed, fed and ministered to people whose personal lifestyle he likely disagreed with.” This put Jesus at odds with religious leaders, who believed they were sullied by associating with the “wrong” people.
Now you can argue that laws forbidding discrimination against gays violate people’s right to freedom of commerce and association. I’m sympathetic to that argument. I have never been completely comfortable with anti-discrimination legislation in the context of private transactions. I think it was justified in the context of the Civil Rights movement for reasons explored by James Joyner: the institutionalized government-supported edifice of racial discrimination was so massive that it was unfair to expect blacks to patiently wait for generations until “market forces” brought it down (assuming they ever did).
Is the institutionalized discrimination against gays that severe? Gays would probably say it is; but I’m not convinced. Take the recent case in New Mexico: the court decided that a photographer could be forced to work a gay wedding despite her moral objection the union. Does she not have the right to decide what and whom she will photograph? And, as a purely practical matter, do you want your wedding photographed by someone who thinks what you’re doing is wrong? Are there no wedding photographers who will do a gay service? When my dad was growing up in Atlanta, there were people who wouldn’t do Jewish events. But there were enough who would that it wasn’t a problem. Must we decree universal tolerance?
All that having been said, the idea of encapsulating a “right to discriminate” into law makes me nervous. If someone proposed a law to give people a right to discriminate against interracial couples, it wouldn’t fly. If someone proposed giving Catholic photographers the right to discriminate against couples who were remarrying after a divorce, it wouldn’t fly. If Muslims petitioned to be allowed to refuse to service non-Muslims, we’d be screaming about sharia. But because it is gays and because not being allowed to discriminate is now being cast a form of oppression, these bills are popping up all over the place.
Religion can not be a duck blind for bad laws because, very quickly, almost anything will be swept into it. There were many people who cast slavery in religious terms, arguing that God himself had wrought slavery because black people were inferior and because they were being punished for the sin of Ham. Jim Crow segregation was supported in religious terms for the same reasons. Pharmacists claim they shouldn’t have to fill prescriptions for birth control if they have a moral objection. Economic issues are frequently cast in religious terms — from both right and left.
I really feel like we’re opening a can of worms here. Indeed, several bills have been hastily withdrawn and rewritten because people realized they were far too broad (Arizona’s law, for example, could have been interpreted to let non-Christians refuse service to Christians). How does someone show that their refusal is based in religion and not just bigotry? Does this only apply to Christians or does it apply to Muslims as well? What if people have religious objections to re-marriage or marriage after pre-marital sex or inter-religious or inter-racial marriage? And how far does this extend? Can you refuse to rent an apartment to a gay person because he might bring his gay partner over? Can you refuse to serve a gay couple in your restaurant because giving them a salad would be “celebrating” their union? Can government grants be withdrawn from businesses that invoke this religious exemption? These are all issues that will come up if these bills pass.
(The gripping hand here is that the Republicans have to know that — whatever your opinions of the laws’ merits — these laws will never hold up in the courts. The courts have traditionally upheld anti-discrimination legislation even in private transactions. At the very least, no lower court will allow this; it would have to go to SCOTUS. Given that, it’s possible this is all just pandering to the conservative base. If so, it’s stupid pandering. Poll after poll shows that young people — the future voters — are much more supportive of gay equality and that anti-gay legislation turns them away from the GOP. The fraction of Americans who oppose gay marriage has been falling steadily for ten years. In red state Missouri, thousands of people — including many devout Christians — turned out to support Michael Sam against the Westboro Baptist “Church”. So the GOP might gain something in the short term. But they will lose more in the long term. Still … I’ll give them the benefit of a doubt and assume there’s an actual principle behind this.)
The more I turn this over, the more I think it’s a bad idea. No matter how much supporters dress these laws up up as a religious freedom bills, they are still designed to give official legal protection to discrimination. I don’t think that’s a place we want to go, not unless you’re willing to challenge the entire basis of anti-discrimination law. It’s one thing to defend people’s freedom to transact business with whom they wish; it’s a bit more to provide official sanction for a very specific discrimination.