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| Strike "Irish," insert "gays" - likely soon to be Kansas law. |
Please note that this implications of this broadly-worded bill go far beyond wedding photographers and bakers. A hospital could refuse a gay partner visitation rights. A funeral home could prohibit a gay partner from participating in funeral arrangements. Gay couples in Kansas could be denied every opportunity to live a normal life that straight couples take for granted. This is the message that the Kansas legislature is sending them.
The bill passed the House 72-49 and is likely to pass the conservative-dominated Senate and be signed into law by conservative Governor Brownback, who needs to rally his base since he is now facing surprisingly stiff competition in his bid for reelection. And while Brownback likes to claim that "Kansas is open for business," this bill effectively tells gays and lesbians to stay away. You need not apply. Way to attract new people and grow the state's economy, Kansas GOP.
I'm not going to rehash arguments over gay marriage; I've done that before and it's really not the focus here. Rather, I'll concentrate on the legal issues of this bill. The most common (and arguably best) argument in support of HB2453 goes something like "You don't have the right to do business with anyone," and its corollary, "I have the right to refuse service to anyone." To an extent, I concede that this is true, and while I would never support this bill, I actually initially had some qualms about actively opposing it. After all, if business owners want to deprive themselves of revenue on the basis of their religious beliefs, well I suppose that's the free market at work. Their loss, right?
But here's the rub. If a half-naked drunk walked into a grocery store and demanded some hot dogs, no one would admonish the store's manager for refusing them service and asking them to leave. Why? Half-naked drunks are unpredictable; they may be dangerous; they may even pose a threat to public health, especially in a grocery store (I'll let you imagine the scenarios). Moreover, half-naked drunks are not a class of citizens that has been traditionally discriminated against and which society has deemed worthy of special guarantees of equality. A drunk is being refused service based on their own individual behavior, not because of belonging to a group. That is perfectly acceptable, and would be if that drunk happened to be gay.
But denying someone service simply because they are gay is discriminating against them simply because of who they are, something they cannot change, and preconceived notions and feelings about the group they belong to. Not their potentially threat-posing behavior. Of course, we have seen this exact pattern played out in our not-too-distant past, albeit with a different group. Religious beliefs such as the "curse of Ham" had long been used to justify black inferiority and servitude. Fortunately, those applying Christian principles to racial equality won out, and the 1964 Civil Rights Act outlawed discrimination based on race and national origin in hotels, restaurants, theaters, and all public accommodations engaging in interstate commerce (and thereby subject to federal regulation). Simply put, it ended segregation. It also established the precedent that someone's right to do business as they wish does not trump another person's right to be discriminated against simply because of who they are.
Not surprisingly, this law was met with some resistance. A hotel owner in Atlanta argued, "the fundamental question…is whether or not Congress has the power to take away the liberty of an individual to run his business as he sees fit in the selection and choice of his customers." Sound familiar? In his 1971 case, Heart of Atlanta Motel v. United States, the Supreme Court ruled that the Civil Rights Act applied to the private sector due to the federal government's ability to regulate interstate commerce. Much of the same language being used today in support of "religious freedom" was used to justify racial discrimination. The target has simply shifted.
But, my critic would probably argue, there's no such federal law prohibiting such discrimination on the basis of sexual orientation. True, sadly. The snarky comeback would be: "So, you admit that you're advocating for a license to discriminate?" But here's the more nuanced rebuttal. Over time, society's opinions on what groups deserve protections of equality, based on a history of past discrimination, continues to evolve. Racism is simply the most egregious example in American history, but it doesn't take slavery and separate water fountains to warrant action. The work of guaranteeing civil rights didn't end with the 1964 Act. Consider this: for much of American history, people with disabilities were perhaps to be pitied, but were not regarded as "full" citizens with the potential to contribute just like any other. That changed with the passage of the Americans with Disabilities Act in 1990, one of the greatest legislative accomplishments of Kansas Republican Senator Bob Dole. In ending workplace and accessibility discrimination against those with disabilities, it was the statutory acknowledgement that millions of Americans were just as capable of being full participants in the American economy and society as anyone else. And it happened just 24 years ago.
We are now in a period where attitudes towards gay citizens are changing rapidly. The prevailing wind undoubtedly blows toward greater tolerance and acceptance, and there will be no going back. With that comes the realization that, like so many groups before them, gay Americans deserve protections that guarantee their equality as citizens, owing to past and present discrimination that only someone truly blind to history would deny. As also happened before, a segment of the population, disingenuously clinging to "personal freedom" (as it apparently only applies to them) and personifying the word "conservative" have chosen to resist this change. Like many other states, Kansas is at a crossroads. It could be a welcoming beacon to all Americans, inviting all who wish to live and work there to contribute to making it a better place to live. Unfortunately, it looks all too likely that it will instead tell an entire segment of the population it is not welcome, sure to damage the state as history leaves it behind.
The other aspect of the bill I'd like to point out, as it is so blatantly unconstitutional a high schooler could rule on it, is this: as written, the bill permits any government employee - city clerk, police officer, whatever - to refuse to provide services owing to "religious beliefs" in the same manner as above. A county clerk could refuse to issue a marriage license to two men or two women should gay marriage be legalized in Kansas; worse, a police officer could refuse to respond to a domestic dispute involving such because they do not recognize their relationship as valid. Let me state this clearly: this bill enables government agents to selectively discriminate based on their personal beliefs. State-sanctioned discrimination. Yes, the bill does state that if one employee refuses to provide the service, the employer shall ensure the service is provided, "if it can be done without undue hardship" (a phrase begging to be litigated). Well, suppose marriage equality comes to Kansas, and two men in sparsely populated western Kansas want to get married. It's all too likely, at least in the early going, that they would not be able to find a willing county clerk within a hundred mile radius. Forcing them to travel to Wichita or Manhattan or Lawrence or wherever when any straight couple could get licensed where they live is supposed to uphold "equal treatment before the law"? People who continuously rail about the virtue of small, unobtrusive government find this acceptable? Are you kidding me?
I could go on about other nefarious aspects of this bill - the incredibly broad scope (something small-government types should also take issue with - to their credit, some House Republicans voted no for this reason; the "CYA" section ensuring that the remainder of the law stays in effect if part of it is struck down; the victim blaming section that holds claimants legally and financially responsible if they dare claim discrimination - but I have to stop somewhere. Suffice it to say this bill would institutionalize discrimination and further damage Kansas' national image. If it is enacted, it will immediately be challenged in court, with parts or all of it being struck down - and Kansas taxpayers will be on the hook for defending it. More efficient use of taxpayer money by "fiscal conservatives."
The fight's not over, though. It still has to pass the Senate and be signed. Contact your Kansas state senator and let them know how you feel. (Make sure you direct your feedback to the right place - today I saw a change.org petition addressed to US Senator Jerry Moran for some reason; he serves in DC and doesn't have anything to do with this bill.) Contact Brownback's office and let him know if he signs this bill, you're one less vote he'll have in November. Maybe, just maybe, we can convince those in Topeka it would be better for Kansas' future to welcome all to the Sunflower State, no matter whom they love.
One final note to those who were probably right with me up till now: Groups like the Kansas Equality Coalition need to lay off Democratic gubernatorial candidate Paul Davis on this issue. They should, of course, continue to advocate as strongly as they can against HB2453, but should mute their criticism of Davis for not speaking out more strongly about it. They should understand the position he's in. He voted against it, of course, but making gay rights a central issue of his campaign is, let's face it, probably not going to substantially increase his election chances in Kansas. Moreover, as House Minority Leader he is essentially powerless to stop it. As Governor, however, he could veto these horrible bills all day long. So let's focus on getting him there. Let him continue to hammer Brownback on the issues that resound with most Kansans - education, taxes, and the economy. Calling him out on this bill and making it a huge issue in the Governor's race not only enables the GOP to label him a loony liberal, it might also dissuade potential Davis voters who decide he's just more of the same. So knock it off, OK?
