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.

Comments

"The sovereign," as John Paul Stevens observed, "must govern impartially."

Legal concepts such as that are the reason that it's a crying shame Justices Roberts, Scalia, and Alioto are on the bench and Justice Stevens isn't.

Roberts, at least, seems to realize his idiocy on occasion. Scalia and Alito are clueless.

This is the civil rights and human rights issue of the 21st century. Gender identity, just as one's ethnicity, has no bearing on one's ability to do their job and must never be used to take away their civil rights. Human beings are just that...............human beings.

Gender identity? Gender is determined prior to birth. It is not subject to interpretation. You either are or you aren't. Why do we have to take this issue to the courts? This is not a social issue. Let's let the courts spend time on issues that matter most Americans. This is made important by politicians looking for voting base. Homosexuality should be debated with a person and his/her maker. Stop involving all of us. What a waste of time.

Who are you to state that no two consenting adults can enter into marriage? This isn't a religious or gender issue, it's an equality and civil rights issue.

The state has a profound responsibility not to discriminate, so that should be clarified, but it's misleading to say that state employees can deny gays basic services. They cannot. The most they can do is turn the matter over to someone else. If they cannot do that and it is an emergency, then it does seem reasonable that they should be required to provide the service as the sole representative of the state.

The freedom to discriminate is substantially different than legal discrimination.

The court system was used by the Democratic Party to impose this phony issue on American voters. It is still about as meaningful as when Rock Hudson and Jim Nabors claimed that they were married to each other. Obviously, they were just two homosexuals who were trying to get attention. I have discovered that the easiest way to end this kind of discussion is to say that I do not want to be a homosexual. I have yet to see a discussion group on the internet that will allow me to continue to participate once I have made that statement. I am just telling the truth. I do not want to be a homosexual.

The billionaire Koch brothers have been installing a legislature populated by nitwits and/or bigots for years. They successfully removed seven long term Republican moderate senators and replaced them with theocrats and demagogues.

This is all in the interest of reducing or completely eliminating income, business and property taxes. They don't care what these wingnuts do, as long as their anti-union, anti-populist, anti-small "d" democratic adversaries are disenfranchised.

While they were passing this legislation, they also were eliminating no-fault divorce.

Wow the evil Koch brothers gain. Here are some tidbits of FACTS for people to chew on from the www.opensecrets.org/orgs/list.php
Union $ 800 million worth goes to DEMS while Koch $ is $18 million. Do the math and the Koch Bros are out spent 44 + times by just the unions. NOW no one can deny that SOROS $ and influence with all is SILENT orgs and foundations.
This is just my .02 cents worth of my opinion.
Rank Organization Total '89-'12 Dem % Rep% Tilt
1 ActBlue $97,192,340 99% 0%
2 American Fedn of State, County & Municipal Employees
$60,667,379 81% 1%
4 National Education Assn
$53,594,488 61% 4%
7 Intl Brotherhood of Electrical Workers
$44,478,789 92% 1%
8 United Auto Workers
$41,667,858 71% 0%
9 Carpenters & Joiners Union
$39,260,371 74% 9%
10 Service Employees International Union
$38,395,690 84% 2%
11 Laborers Union
$37,494,010 85% 7%
12 American Federation of Teachers
$36,713,325 89% 0%
13 Communications Workers of America
$36,188,135 86% 0%
14 Teamsters Union $36,123,209 88% 5%
16 United Food & Commercial Workers Union
$33,756,550 86% 0%
17 United Parcel Service
$32,214,128 35% 64%
20 Machinists & Aerospace Workers Union
$31,313,097 98% 1%
23 AFL-CIO $30,938,977 61% 3%
32 National Assn of Letter Carriers
$26,106,359 84% 9%
39 Plumbers & Pipefitters Union
$23,886,248 85% 4%
42 Operating Engineers Union
$23,036,848 82% 14%
43 International Assn of Fire Fighters
$22,963,260 79% 16%
46 Sheet Metal Workers Union
$22,372,978 95% 2%
59 Koch Industries $18,083,948 8% 90%
60 American Postal Workers Union
$17,957,308 86% 2%

The gay agenda is getting so radical and belligerent that people are now pushing back. Gays are not oppressed in any way in the USA. But if they keep trying to make it "normal", and that we all have to not only accept it, but have the schools teach our kids it is normal... you are bound to get blow-back.
If someone conscientiously objects to the homosexual lifestyle, and does not want to promote it in any way because of personal, religious convictions...why should they be forced to by the state?
It is not right someone won't cut your hair because you are gay. Making the cake, or officiating at your wedding is furthering your agenda, and lifestyle. In a free country, a person should be able to refuse to be involved. It is not that big of a deal.
I do not think the state will be able to deny services though. That law will never stand up in court.

I doubt that many gays and lesbians live in the rural parts of Kansas. Why would they? If this stands, maybe LGBT people should move out of the state en masse, and should certainly avoid visiting or traveling through. I could say the same about West Virginia, where I now live, but at least some cities here have been supportive of gay rights.

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