Kansas's Radical Attack on Gays and Lesbians

The bill passed by the Kansas House of Representatives today has a bland title—"An act concerning religious freedoms with respect to marriage." But the language cannot conceal the vicious discrimination it's intended to protect. The bill would allow not only private businesses but, quite remarkably, state officials to withhold services from gays and lesbians as long as it is motivated by a "sincerely held religious beliefs of the individual or religious entity regarding sex or gender." This reprehensible proposed law would render gays and lesbians second-class citizens in Kansas and deprives them of rights most people have long taken for granted.

The law allows private business to deny gays and lesbians "services, accommodations, advantages, facilities, goods, or privileges" based on their sexual orientation. By granting immunity to anyone who denies services to gays and lesbians based on an asserted religious belief, it would prevent gays and lesbians from suing even based on common-law rights that require public accommodations to accept all comers on equal terms. The law is not even limited to same-sex couples, but permits the denial of services to anyone "related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement." Rather than extending civil-rights protections to gays and lesbians, the Kansas law would move the state in the opposite direction, diminishing the civil rights of gays and lesbians (and, possibly, straight people with gay and lesbian friends as well).

But even worse are the provisions that allow state employees to withhold services from gays and lesbians. "The sovereign," as John Paul Stevens observed, "must govern impartially." This bill is a direct shot at this basic principle of democratic governance. It is bad enough to permit private businesses to discriminate; to allow public officials to discriminate is even worse. As the Daily Beast's Jamelle Bouie puts it, "[a]mbulances can refuse to come to the home of a gay couple, park managers can deny them entry, state hospitals can turn them away, and public welfare agencies can decline to work with them." Allowing state officials to deny services to same-sex couples is about as stark a designation of second-class citizenship as one can imagine short of bringing back George Wallace to deny gays and lesbians access to the University of Kansas.

Admittedly, to mitigate the worst effects of this discrimination, the law maintains that state or secular employers "shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer." Particularly given the "undue hardship" loophole, however, this can't be very reassuring. In rural areas where businesses or state agencies might be staffed by small numbers of people, gays and lesbians may be unable to find anyone who doesn't claim a statutory right to discriminate. At best, the law represents a substantial burden on gays and lesbians, and in some cases will unquestionably result in an outright denial of services.

The pretext for this rollback of civil rights is the protection of religious freedom. But the Kansas law makes clear how hollow and dangerous such arguments are. It's worth noting here that we're talking about secular businesses and state officials. Acting as individuals, people are free for religious (or any other reason) not to associate with same-sex couples or support same-sex marriage. But—whether motivated by religious belief or not—homophobic beliefs cannot trump the rights of people to use public accommodations on equal terms. These arguments were bad when they were used to oppose civil-rights legislation to protect African-Americans and women, and they're no better in this context. For state officials to be permitted to deny services to citizens based on private religious beliefs is simply unconscionable.

In its purpose, the Kansas statute is reminiscent of the Colorado constitutional amendment that prevented any state entity from extending civil-rights protections to gays and lesbians. In holding the statute unconstitutional, Justice Anthony Kennedy argued that the law "seems inexplicable by anything but animus toward the class that it affects." Despite the fig leaf of religious freedom, the same thing is true of the Kansas law. The First Amendment, after all, already protects religious believers from discriminatory acts targeted at religious belief. To allegedly expand religious freedom solely for the purpose of permitting discrimination against a particular class of individuals is a perversion of this fundamental principle. The Kansas law makes the need for federal legislation protecting the the civil rights of gays and lesbians clear, and it also underscores that it's well past time for the Supreme Court to treat statutes discriminating against gays and lesbians to heightened scrutiny. This kind of law is simply not consistent with the rights granted by the 14th Amendment. Let's hope the Supreme Court will recognize this.

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