Jim Crow in Pink?

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.

Comments are closed.

  1. Xetrov

    How about a law that simply states nobody can be forced to render services to another person.

    The problem I have with these legal situations that are coming up, is these gay couples appear to be targeting christian owned establishments to try to elicit the refusal, and then sue over it.

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  2. Hal_10000 *

    In other legal matters, you’re sometimes required to demonstrate a significant burden. I sometimes think that could apply here, i.e., — if there are twenty wedding photographers you could use and you’re bitching because one won’t do a gay wedding, tough. On the other hand, if there are two hospitals and neither will treat you, that is a problem. I suspect that almost all anti-discrimination lawsuits would fall under the former and be dismissed.

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  3. Seattle Outcast

    I use my yardstick of “acting in the public’s trust” – if you decide to go into any occupation that gives you power over someone’s safety, health, protection, etc, then you don’t get to pick an choose which part of your job you get to perform. You have to do all of it, for everyone.

    For example, pharmacists should have to dispense all legal medicines to anyone with a legal prescription. Not pick and choose and use their religion as a basis not to dispense birth control – particularly when their are no other reasonable choices for access. It’s a requirement of keeping your license to dispense medicine.

    You want to be a dick and not sell wedding cakes to fags – go ahead, lose business and perhaps go bankrupt for being a complete dick. Personally, I’d sell cakes to anyone that wanted one, even if they were marrying their car, a 4th wife, or a tree. The money all spends the same.

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  4. AlexInCT

    My personal opinion is simple: if you don’t fucking want my business I don’t want to do business with you. Anyone stupid enough to say they don’t want to serve gays and thus excludes those customers from their business are idiots IMO. Money is money. Then again, I think that anyone that decides they should sue to force people that do not want to deal with them to do so is a bigger and even dumber ass than those stupid enough to not want to do business with someone or another.

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  5. hist_ed

    “Anyone stupid enough to say they don’t want to serve gays and thus excludes those customers from their business are idiots IMO”

    Depending on where the business operates, it might not be bad for them. There are probably plenty of people who would support explicitly anti-gay businesses (imagine a door sticker with a red circle through a couple of guys buggering each other).

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  6. AlexInCT

    Depending on where the business operates, it might not be bad for them. There are probably plenty of people who would support explicitly anti-gay businesses (imagine a door sticker with a red circle through a couple of guys buggering each other).

    Oh I am sure there will be. Just like there will be people and places that will shun people that target gays. Frankly I find it far more disconcerting when government forces businesses to shun certain clients. Like smokers for example. I don’t smoke. I think it is a stupid and expensive habit and usually avoid it. But that businesses can be forced to shun them, because of health issues they tell us, is insane to me. When smoking didn’t carry the same stigma as child molesting I chose not to go to the places where it was too much for me to put up with. Some people feel it is real cool that smokers get treated like lepers. Too often they are the same people that think gays should also be able to force someone out of business.

    My point is a simple one though: anyone in business that decides to shun any customer is eventually going to regret it. Money lost, is money lost. If you don’t want my business, I am cool with giving my money to someone else. And no, I feel zero need to force you to take my money. I find that tactic to be ridiculous, and it makes me wonder what your motives are in the first place.

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  7. Aussiesmurf

    I think difficulties occur because of the ‘timing’ of the refusal of service. I dislike arguing by anecdote, but a know of a number of occasions (particularly in areas such as hospitality) where a same-sex couple has booked a service such as a motel room, B & B, caterer etc. and the booking has been accepted. Then when the couple arrive at the motel, or the day before the wedding, etc, etc. the service provider discovers the couple are gay and refuses service.

    In that situation it is hardly sufficient to say that the couple can ‘simply go elsewhere’, and ridiculous to argue that the nature of their relationship should be disclosed ‘up front’.

    It is also interesting to note that this is only really applicable when the merchant would discover in the context of the transaction that the customer (s) were gay. This is frequently why it comes up in the context of weddings, parties, holidays etc. If I go to play paintball, or pool, or the supermarket, there is no way that the service provider will have any idea about the nature of my relationship.

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  8. louctiel

    In my opinion, this never gets discussed narrowly enough.

    In most of the cases where this has become an issue, the business was being asked to create something. They were being asked to express themselves as part of the business deal. For example, in the cited New Mexico case, the bakery was asked to create a special cake to celebrate a special occasion. While the magistrate in the case agreed that creating such a cake was an expression and subject to freedom under the First Amendment, he said that creating the cake did not “support the idea of same sex marriage.” He might have a point except that the reception is always a celebration of a marriage, but I digress.

    The issue therefore is whether the state can compel speech or expression.

    That is really what is being discussed.

    If a person can be compelled to express themselves in favor of ideas with which they disagree, we can be compelled to recite the Pledge of Allegiance. We can be force to take a loyalty oath to whomever or whatever. Speakers could be compelled to speak at organizations with which they disagree. Song writers could be forced to write songs advocating the KKK. People of the Jewish faith who write press releases as a business could be forced to write press releases on activities of the Nazi Party.

    Is that really where we want to go?

    I ran an apartment complex for years and had no issues with renting to gay couples even though I believe that homosexuality is a sin. I didn’t care because it didn’t matter to the apartment – the goods being offered – that the apartment was being used as by a gay couple. However, as an artist, if I were asked to create something that supported or glorified the gay lifestyle, I believe I have the right to refuse that commission. Otherwise, I am being compelled to express something which is contrary to the First Amendment.

    In short, when the product is “viewpoint neutral,” such as a hamburger at a lunch counter or a water fountain, people should not be discriminated against. But forcing people to promote or support an idea they disagree with is not ridding the world of discrimination. It is telling people that their beliefs must be subjugated to the will of the all knowing, all seeing, all righteous state.

    I can’t and won’t buy into that.

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  9. AlexInCT

    If I go to play paintball, or pool, or the supermarket, there is no way that the service provider will have any idea about the nature of my relationship.

    If you show up in pink camo or insist everyone color coordinate their outfits, I think they might suspect something….

    OK stupid stereo typing jokes aside, I do have to point out that I know way too many gay people that totally define themselves around their gayness and make it a point to make sure everyone knows they are gay. I have never understood that. Even though I can empathize with gays – I am a lesbian trapped in a man’s body – I feel no need to shout at the world what my sexual preferences are.

    But I will emphasize my point again: why the fuck would you want to force your business upon someone that tells you they don’t want to give it to you because of some stupid reason? One has to wonder WTF is going on. I never feel the need to walk into a vegetarian estabilshment and demanding they serve me a raw steak, or else. Know what I am saying?

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  10. Iconoclast

    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.

    These arguments fail on a number of levels. First of all, the arguments are equivocating over what “service” means. Sure, as Christians, we are expected to minister, feed, and pray for people whose lifestyles we disagree with. But nowhere in the Bible is there a requirement to condone sinful behavior, and that is exactly what gay marriage is. A church is a House of God, after all, and God makes it clear that homosexual behavior falls short of His standard. So, while the Bible doesn’t call “service to another an affirmation”, we do need to determine what “service” means. Again, we can pray for, feed, and minister to gays without “affirming” their lifestyle, but who can say with a straight face that providing the service of marriage to a gay couple is not affirmation? From the Christian perspective, marriage is suppose to be a “union of holy matrimony” — how “holy” can a forbidden union be? In the Old Testament, homosexual behavior was punishable by death, as were extra-marital and incestuous trysts.

    Second, this has absolutely nothing to do with “associating with the ‘wrong’ people”, so it’s a complete non sequitur to even bring that up. Like I said, a church can and should welcome gays and everyone else into their congregation, but gays need to understand that God doesn’t condone homosexual behavior, just as drunks who enter a church need to understand that God doesn’t condone drunkenness, and as sluts (both male and female) need to understand that God doesn’t condone promiscuous behavior. Yet, given this, gays, drunks and sluts are welcome to enter a church for whatever needs they have, as God hates the sin but loves the sinner, which is why God died for them.

    But again, performing a marriage ceremony in a House of God is affirming the gay lifestyle, whether a given pastor agrees or not.

    As louctiel points out, the issue here is not whether gays have a “right” to marry each other, it’s whether non-gays have the right to not be forced to condone the gay lifestyle. And as Xetrov pointed out early on, the problem is that Christians are being targeted by the militantly gay. There are gays out there, strutting around with enormous chips on their shoulders, double-dog daring Christian businesses to knock that chip off, and then crying to their ACLU lawyers when that chip is knocked off.

    One reason why Christianity is dying in this country (and why I believe the country itself is dying) is that Christians like Pastor Adam Hamilton are too busy kow-towing to the secular world to bother dealing with the uncomfortable truth, that God doesn’t approve of certain things that we do. Christianity will always be seen by the world as “backwards”, “oppressive”, “hate-filled” and so forth. The Church needs to buck up and understand that, rather than trying to appease the world, which will only “accept” “Christianity” when it becomes a fully watered-down new-age package of spiritual sugar that renounces everything the Bible actually says (Bishop John Shelby Spong, anyone?).

    Cheer up, saints, it’s gonna get worse (I expect lots of down votes on this one).

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  11. CM

    I wish we could signatures below our posts. I’d use this one (because I’m such a massive fan of cherry-picking):

    Alex:

    “…I know way too many gay people…”

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  12. AlexInCT

    I even have an uncle that is gay, CM, and I have never had a problem with him or his gay buddies (which happens to account for a lot of the gay people I know). But go fucking figure you would try to again remove any shadow of a doubt that you are a douchebag…

    BTW, my uncle is one of these gay people that really finds it ludicrous that so many gay people these days only define themselves by their sexual preferences, as if they are nothing else. The sumbitch is one opinionated mofo, I guess.

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  13. CM

    I even have an uncle that is gay, CM, and I have never had a problem with him or his gay buddies (which happens to account for a lot of the gay people I know).

    I’ve never thought that you would, I can’t recall any comments that suggest you have any problem with gay people. I would have said the same thing about anyone (well, at least those who I engage with the most).

    But go fucking figure you would try to again remove any shadow of a doubt that you are a douchebag…

    Riiiiiiiiiiiiiiiiiiiiight. That makes total sense. It wasn’t meant as a joke at all.

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  14. Seattle Outcast

    When you spend so much time being a total ass on a specific website (like this one), nobody will ever know if you are joking.

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