With same-sex marriage advancing faster than anyone expected, you might wonder what the LGBT community has to complain about anymore. The grand prize, marriage equality nationwide, is almost within reach. Surely the country has entered some kind of “post-homophobic” era.
Right. Just like the election of Barack Obama ushered in a “post-racial” era.
Reality is never quite that simple, and history is never a completely linear affair, as the state of Kansas reminded us when its House of Representatives passed House Bill 2453 by a vote of 72-49. The Kansas Senate, which consists of 32 Republicans and 8 Democrats, is likely to follow suit, and the state’s conservative governor, Sam Brownback, will almost certainly sign the bill into law.
Slate contributor Mark Joseph Stern describes the impact of HB 2453 like this:
The result will mark Kansas as the first state, though certainly not the last, to legalize segregation of gay and straight people in virtually every area of life.
Slate is a liberal publication. Of course they’re going to describe the bill in the most melodramatic terms possible, right?
So I read HB 2453 for myself. You should too.
It’s fairly short, as legislation goes. But in case you don’t have time to read the whole thing, I’ve included some of the major provisions below. (Highlights are mine.)
In short, the bill asserts the right of any “individual or religious entity” to deny “any services” to someone based on the individual or entity’s “sincerely held religious beliefs.” The bill has been described as an attempt to protect people from being forced to help with same-sex weddings, but section 1
goes could be interpreted as going much further, apparently perhaps giving people the right to refuse ANY service, “related to or unrelated to” marriage. (Update: Thanks to Dan for pointing out in the comments below that the wording of the bill is somewhat vague on this point.)
No individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.
House Bill 2453 strips away a person’s legal recourse in response to such refusal to provide service. To quote Slate’s Mark Joseph Stern, “If a gay couple sues for discrimination, they won’t just lose; they’ll be forced to pay their opponent’s attorney fees.”
He appears to be right on that count:
Notwithstanding any other provision of law, no refusal by an individual or religious entity to engage in any activity described in section 1, and amendments hereto, shall result in:
(1) A civil claim or cause of action under state or local law based upon such refusal; or
(2) an action by any governmental entity to penalize, withhold benefits from, discriminate against or otherwise disadvantage any protected individual or religious entity, under any state or local law.
If a government entity, or any person asserts a claim or cause of action, or takes any adverse action against an individual or religious entity in violation of subsection (a), such individual or religious entity shall be entitled upon request to recover all reasonable attorney fees, costs, and damages such individual or religious entity incurred as a result of such violation.
In theory, governments and “non-religious” entities are still obligated to provide “lawful service” to gay people — i.e. driver’s licenses (though not marriage, in the eyes of Kansas):
If an individual employed by a governmental entity or other non-religious entity invokes any of the protections provided by section 1, and amendments hereto, as a basis for declining to provide a lawful service that is otherwise consistent with the entity’s duties or policies, the individual’s employer, in directing the performance of such service, 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 undo hardship to the employer.
But religious entities are not mentioned in the bill’s provision to “ensure that the requested service is provided.” On top of which, House Bill 2453 defines religious entities pretty broadly, as:
An organization, regardless of its non-profit or for-profit status, and regardless of whether its activities are deemed wholly or partly religious…
For purposes of discriminating against gays, a religious entity can even be:
A privately held business operating consistently with its sincerely held religious beliefs…
Apparently Slate wasn’t being so melodramatic after all.
Under HB 2453, it’s possible that if you work at the DMV and someone you know (or suspect) to be gay asks you to renew their driver’s license, you can refuse. In which case, your supervisor has to find someone who will. But essentially, you get to recreate the experience of a 1950s-era “whites only” lunch counter, right here in 2014. You get to tell someone you think they’re unworthy of your attention — even if the requested service has nothing to do with gay marriage. You get to discriminate, consequence-free.
Mark Joseph Stern suggested that HB 2453 would allow police officers to refuse to respond if a gay couple called for help. I can’t find anything in this monstrosity of a law that would suggest he’s read it wrongly.
The wording of HB 2453 is vague enough to create the possibility that someone who owns or works for a private business, you could refuse any service to someone you know or suspect to be gay, as long as you can claim to operate your business in accordance with your “sincerely held religious beliefs.” (What does that mean, anyway? Can you claim to be a religious business if you put gospel tracts next to the cash register? If you hang a fish decal in the window?)
We’re not necessarily just talking about wedding planners and photographers, either. We’re not just talking about pastors who choose not to officiate same-sex weddings. (Religious ministers have never been compelled to officiate weddings to which they objected, regardless of the reason.)
Depending on how the bill is read, any business providing any service — related or unrelated to marriage — is allowed to discriminate under Kansas House Bill 2453.
Proponents of the law say it will prevent discrimination. Discrimination against those who want to discriminate, it seems. “Discrimination is horrible. It’s hurtful… It has no place in civilized society, and that’s precisely why we’re moving this bill,” said Rep. Charles Macheers in defense of HB 2453.
Was he oblivious to the irony?
Same-sex marriage remains a contentious issue. Though not everyone will agree, I happen to believe there are people of goodwill on both sides. Not everyone who objects to same-sex marriage is a hater or a homophobe. Likewise, not everyone who supports gay marriage is out to destroy Western civilization.
But all persons are equal before the law. This bedrock principle of democracy is enshrined in the 14th Amendment to the US Constitution. It means you cannot target one group or class of people for discrimination, even in the name of protecting your “sincerely held religious beliefs.” Especially not when it comes to basic services to which every citizen is entitled — like getting a driver’s license or having a police officer respond when you’re being held at gunpoint.
Finally, to my fellow Christians in Kansas and beyond who think laws like HB 2453 are necessary to protect their religiously-based objection to gay marriage, please remember what the apostle Paul taught. Only one law is necessary. Only one law trumps the rest. It’s not the law of religious freedom. And it’s certainly not the law that allows allowing you to discriminate against someone even when it comes to providing a service that in no way requires you to violate your conscience.
The only law that matters is the law of love. This is the law that fulfills all the rest, according to Paul. This law, he insists, “does no harm to a neighbor.”
HB 2453, on the other hand, does a great deal of harm to our neighbors.