By Mark Joseph Stern
Earlier this month, the Kansas House of Representatives overwhelmingly approved a measure designed to bring anti-gay segregation — under the guise of “religious liberty” — to the already deep-red state. The bill, written out of fear that the state may soon face an Oklahoma-style gay marriage ruling, will now easily pass the Republican Senate and be signed into law by the Republican governor. 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 arena of life.
If that sounds overblown, consider the bill itself. When passed, the new law will allow any individual, group, or private business to refuse to serve gay couples if “it would be contrary to their sincerely held religious beliefs.” Private employers can continue to fire gay employees on account of their sexuality. Stores may deny gay couples goods and services because they are gay. Hotels can eject gay couples or deny them entry in the first place. Businesses that provide public accommodations — movie theaters, restaurants — can turn away gay couples at the door. And if a gay couple sues for discrimination, they won’t just lose, they’ll be forced to pay their opponent’s attorney’s fees. As I’ve noted before, anti-gay businesses might as well put out signs alerting that their business isn’t welcoming of gay people.
But that’s just the tip of the iceberg. In addition to barring all anti-discrimination lawsuits against private employers, the new law permits government employees to deny service to gays in the name of “religious liberty.” This is nothing new, but the sweep of Kansas’ statute is alarming. Any government employee is given explicit permission to discriminate against gay couples — not just county clerks and DMV employees, but literally anyone who works for the state of Kansas. If a gay couple calls the police, an officer may refuse to help them if interacting with a gay couple violates his religious principles. State hospitals can turn away gay couples at the door and deny them treatment with impunity. Gay couples can be banned from public parks, public pools, anything that operates under the aegis of the Kansas state government.
It gets worse. The law’s advocates claim that it applies only to gay couples, but there’s no clear limiting principle in the text of the bill that would keep it from applying to gay individuals as well. A catch-all clause allows businesses and bureaucrats to discriminate against gay people so long as this discrimination is somehow “related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” (Emphases mine.) This subtle loophole is really just a blank check to discriminate: As long as an individual believes that his service is somehow linked to a gay union of any form, he can legally refuse his services. And since anyone who denies gays service is completely shielded from any charges, no one will ever have to prove that their particular form of discrimination falls within the four corners of the law.
Supporting the bill on the House floor, Republican state Rep. Charles Macheers proclaimed that “discrimination is horrible. It’s hurtful. … It has no place in civilized society, and that’s precisely why we’re moving this bill.” The latter claim is absurd, of course; this bill is an explicit effort to make gay people’s lives miserable, but the former is absolutely true. Discrimination is hurtful and horrible, and it will also soon be codified into Kansas law, as other red states look on (and follow suit). Homophobes are nothing if not savvy, and while the judiciary dukes out the gay marriage issue, the shrewdest bigots have already moved on to the next battle. There might still be time to prevent such discrimination in bluer states. But in dark-red places like Kansas, anti-gay segregation is the new reality.