The New Untouchables

Last week in Kansas, one house of the state legislature passed the most savagely anti-gay bill to appear in the U.S. in a long time. In the name of “religious liberty”, it would have repealed all equal-protection laws as they apply to LGBT people, allowing any business owner to deny service to a gay customer on a whim: restaurants could turn them away, doctors could refuse to treat them, department stores could put up “No Gays Allowed” signs. Even more shocking, the bill also applied to government employees, meaning that in theory a police officer could refuse to investigate an anti-gay hate crime, a public school teacher could refuse to teach the child of a same-sex couple, or a poll worker could refuse to give a gay person a ballot.

But after the bill passed the state House, there was an outcry, and a wave of rationality inexplicably overtook Kansas lawmakers. Legalizing such sweeping discrimination seemed to be too much even for them. The bill stalled in the state Senate and is presumed dead for now, but the concept hasn’t gone away. A similar bill passed both houses of the Arizona legislature and is awaiting action by Republican governor Jan Brewer, who hasn’t said whether she’ll sign it. [UPDATE: On Wednesday evening, Brewer vetoed the bill.] And copycat bills have popped up in Idaho, South Dakota, Ohio, Mississippi, Georgia, and elsewhere (even Maine, although that one was soundly rejected).

As I said, the sponsors of these right-to-discriminate laws claim they’re about protecting religious liberty. But what gives the game away is that they’re only proposing to cover unequal treatment of LGBT people. Why is this the only prejudice deemed worth protecting? Some religious sects disallow divorce; why can’t they refuse service to people who’ve been divorced and remarried? Some religious people are against interracial marriage; why isn’t that a valid reason to refuse service? Some churches think women shouldn’t work outside the home; why aren’t they letting employers turn away all women? Why is racist or sexist bigotry less worthy of protection than anti-gay bigotry, if they’re all rooted in religious beliefs?

Even if any of these bills become law, they have near-zero chance of surviving court review, given their blatant rejection of the 14th Amendment. But they give us a glimpse into what the religious right is thinking, what their ideal world would look like.

Some commentators called this an anti-gay Jim Crow, but I don’t think that’s quite right. Jim Crow laws put up a pretense of creating a separate-but-equal treatment scheme, but these bills don’t even pretend to do that much. Instead, they seek to create a world where gay people – or even people merely believed to be gay – could be treated as legal unpersons, untouchables, exiled from society on the whim of anyone who didn’t want to deal with them.

This is the latest and most vicious iteration of the persistent demand for the “right” to discriminate, based on the absurd idea that someone’s religious beliefs allow them to retreat into a bubble of private law that they can enforce on anyone they come into contact with. As I said, I doubt any of these bills will succeed – but since religious fundamentalists are losing the culture war and know it, I expect we’re going to see more right-to-bigotry laws like these. They’re last-ditch measures, really.

What I find most striking is how heavy a millstone the religious right seems eager to hang around its collective neck with bills like these. As Andrew Sullivan, himself a conservative and a Catholic, puts it:

If the Republican Party wanted to demonstrate that it wants no votes from anyone under 40, it couldn’t have found a better way to do it.

As tolerance and equality for LGBT people becomes a near-unanimous norm, especially among younger generations, the GOP and their fundamentalist base seems more and more determined not just to fight the tide of progress, but to push deliberately cruel and spiteful laws. It’s as if they want to underline the fact that they view gay people as less human, less deserving of equal protection than everyone else. Are they deluded enough to think that this obstinacy will win the battle in the long run? Or is this just their way of going out in a blaze of defiance?

Image credit: Olga Besnard /

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Scott F

    “As Andrew Sullivan, himself a conservative and a Catholic…”

    You left out the fact that Sullivan is openly gay. This little tidbit might influence his thinking at least as much as his conservatism and his Catholicism.

  • Nathaniel

    In a parallel universe much like our own, there is a quiet inn
    located in a sleepy town. It is run by a husband and wife couple, the
    sort of literal mom-and-pop business which has been almost wiped out by
    Holiday Inns and Microtels. It is late, near the time when the husband,
    Steve, closes up shop for the night. He and his wife are getting on in
    their years, with numerous wrinkles around his eyes, and hair more gray
    than not. But age has not deprived him of his strength, having a
    straight back and biceps that had yet to droop. He is still manning the
    reception desk. He is expecting a reservation, even though they are
    running late. His gaze perks up when he hears the sound of the front
    door opening. A hugely pregnant women with brown hair, Jane, comes
    puffing in. She is clearly into the third trimester, and likely closer
    to the end than the beginning of that period. Her bone structure is
    solid with broad shoulders. She smiles when she sees that someone is
    still up.

    “Sorry for keeping you waiting. Getting me and my cargo ready took
    longer than we thought. And the weather certainly didn’t help.” Upon
    saying the word “cargo,” one hand reaches down to rub her navel.

    Steve smiles back. “Please. You’re fine, Mrs. Harvall. Let me get you situated while we wait for Mr. Harvall to come in.”

    At this, Jane lets out a hearty laugh. “Oh, pardon me. But we don’t share names. And its not Mister Harvall.

    The smile vanishes from Steve’s eyes, and the one on his lips turns
    to plaster. He begins to say, “What do you-,” but is interrupted by the
    sound of the door opening again.

    Another woman comes in with more bags. She has short spiky hair, an
    equal mix of black and dyed blonde. The color banding is clearly
    intended. She is shorter than her spouse and has a softer frame. If not
    for the pregnancy, she would have been puffier too.

    She turns towards her wife. “Everything settled Janie?”

    “Not yet, Robin. We were just getting started when-”

    “I’m sorry, but we have no rooms available.”

    At this both women turn back to Steve. Robin with a look of brow
    furrowed puzzlement, Jane with a increasing cast of wariness. Jane
    speaks first. “What do you mean? Last I checked, our reservation was
    still valid.”

    “There are no rooms to be had.” Steve’s face has become a study in
    stillness. Its expression told not of a man who still helped his
    neighbors free their driveways of snow every year, but of a judge giving
    a sentence of guilty.

    Jane’s eyes narrow. “What is it? Our money not any good here?” Robin,
    clearly uncomfortable with the situation, visibly bites her lip. But
    she does nothing to interrupt.

    “Its not your money that’s at issue here.” His face remains hard and
    unyielding as he says this, only the word “money” causing a quicksilver
    flash of his upper lip curling upwards before coming crashing down

    “I see.” Jane’s face has not been still, but rather has increasingly
    curdled into smouldering anger, red starting at the neck and rising all
    the way to the top of her cheeks. She draws a quick breath and prepares
    to say something sharp as a laser and cutting as cruelty, but Robin
    grabs her attention first by touching her shoulder. Eyes looking into
    eyes, Robin silently shakes her head one inch to each side. Jane purses
    her lips so hard so almost crushes them like grapes, but makes no
    protest. With a slow turn back, she clearly shoves the lid back onto her
    broiling pot with great effort. So instead she says “Well then, do you
    have a suggestion as to where else we can sleep for the night?

    Steve’s response slices through the air like obsidian. “There are
    plenty of farms in the area. You might find someone who’s willing to let
    you sleep in their stables.”

    Jane stiffens, and her incisors flash as air is harshly sucked in through her flared nostrils. “Why you-”

    Robin starts pulling on Jane’s arm. “C’mon, lets just go.”

    With a violent head shake, Jane says “No, I will not tolerate this bully insulting my family.”

    Another, sharper tug. “Janie, please.” A keening note of fear and anxiety ooze out of the words like a disease.

    With nostrils still flared, Jane draws herself up with shoulders
    thrown back. And then after a moment, slowly deflates back down. Her
    torso closes inward. Anger still shines out of her eyes, but it is now
    the anger of a defeated solider who has been captured by the enemy. With
    one final murderous glare, Jane picks up her bags and starts to leave,
    with a anxious Robin behind her.

    As they reach the front door, they are stopped by Steve’s voice. “One
    last thing. The only hospitals in the area are run the Catholic Church.
    If your…friend goes into labor, they might decide the baby is better
    off with decent folk.”

    Not bothering to offer a response, Robin rushes out. Jane leaves
    right after her, slamming the door. Steve sighs, and begins the nightly
    ritual of closing time. He was sorry that he didn’t figure out who they
    were sooner. Then this whole ugly business might have been avoided. But
    he felt no qualms about the necessity of what he had done. And he was
    secure in his knowledge that the law was behind him. This was America,
    Land of the Brave and Home of the Free. Free to tell deviants that they
    were not welcome in his inn.

    But this wasn’t just about the laws of man. It was also about the
    laws of God. And those supported him as well. When he threw those women
    out, he did not merely express his legal rights. He also struck a
    necessary blow for his faith, and their souls. If more were like him,
    then maybe people like them would have never fallen so far. He had done
    the right thing. Telling that woman who was carrying the baby of another
    that there was no room and that she should sleep in a stable; It was
    exactly what Jesus would have done. He was sure of it.

    And with that final heart warming thought, he flipped out the light
    and went upstairs to kiss his wife goodnight. For as the good book said,
    it is not good that the man should be alone.

  • Pito Rosario

    That’s a POWERFUL piece of writing, Nathaniel; almost sermonic!

  • nfq

    It occurs to me after reading this that “untouchable” means two opposite things — either (as in the caste sense) a shunned person “not fit for being touched,” or an exalted/respected person or thing “unable to be touched” (e.g. someone on a winning streak, or something above criticism).

    Somehow when I read the title of this post, my brain chose the second meaning, and when I saw the rainbow flag I was expecting a case for how, increasingly, it’s no longer acceptable to criticize LGBT people for their sexual orientation/gender identity. (These are, as you say, last-ditch measures and the Religious Right side is losing.) But sadly there are lots of people who still want GSM folks to be untouchable in the first sense….

  • Tommykey69

    I think we all knew he was gay, but that he is conservative and Catholic in spite of it.

  • Nathaniel

    Thank you.

  • Pito Rosario


  • Little_Magpie

    agreed. well done. though i gotta say, i’ve been reading a lot of superhero fanfic, so I kept expecting one or both of the women to pull out superpowers and deck him / zap him, whatever… “you picked the wrong lesbians to **** with..” :)

    Because that’s how my mind works. LOL. :)

  • Annerdr

    “And copycat bills have popped up in Idaho, South Dakota, Ohio, Mississippi, Georgia, and elsewhere (even Maine, although that one was soundly rejected).”
    So, is ALEC involved?

  • Adam Lee

    UPDATE: A short while ago, Arizona’s Gov. Brewer announced she had vetoed the right-to-discriminate bill. I’ve updated the post.

  • Adam Lee

    That was magnificent!

  • Adam Lee

    Good thinking! It doesn’t appear to be ALEC in this case, but there are definitely some religious-right policy groups that are coordinating many of these state bills. Mother Jones mentions Citizen Link, a branch of Focus on the Family, that’s been active in pushing them.

  • Adolf Verloc

    This whole concept of religion providing an excuse for discrimination in everyday commerce needs to be rejected totally.. Whether you are selling burgers, wedding cakes, photographic services or appliances, you do not have a right to refuse service to anyone who is not violent or disruptive. There could be a few borderline cases: say, a dealer in religious vestments who refuses to sell vestments to anyone but ordained clergy.

  • Nathaniel

    Lordy me, I do think I am blushing. Better be careful, Mr. Lee. More such flattering attention from you, and I just might get the vapors.

    Seriously, I am pleased as punch that my contributions have been so openly appreciated on this blog.

  • Incogneato

    You can count on Andrew Sullivan to speak out against any bigotry and injustice… that affects him personally.

  • Erika

    Photographic services are the one example on your list I can see as an exception, but it has nothing to do with religion. Photography is generally considered an act of personal expression (as opposed to a service at a business of public accommodation) because it requires the photographer to interpret and artistically capture the subject.

    What this means is that a photographer can refuse a job on a broad variety of grounds — maybe they don’t like the location of the wedding they’re shooting, maybe they don’t like the set of shots the couple requested, or maybe their reason is discriminatory — but since the photographer’s interpretation is inherently a part of their job, they can refuse the ground on whatever basis they want and they needn’t justify their decision. (That said, if they explicitly state discrimination as their reason for refusal, there is a case to be made against them. Which is one of the ways anti-discrimination laws are weird.)

    But in every other case I agree. Unless the service being offered is one where the provider generally has and exercises broad discretion in choosing who to provide service to, there is no justification of this sort of discrimination.

  • XaurreauX Pont DeLac

    Let us not forget that Gov. Brewer vetoed the anti-gay bill because she was pressured into it, not because she had the decency and class to do it because it is the right thing to do.

  • smrnda

    I know some photographers who are artists. I notice that most of them don’t advertize in the yellow pages.

    Most photographers are, essentially, hacks doing whatever work comes their way, and nothing they are doing should be considered ‘art’ any more than someone painting a fence using one color only should be seen as being an artist. Commercial work is clearly distinct from artistic photography. If a photographer wants to be an ARTIST then they don’t offer work on a ‘for hire’ basic. Most photographers I know who are actually artists don’t advertize, and the few that do regard their commercial work as totally separate from their artistic work, so I don’t know if the objection really holds.

  • GCT

    Not only that, but she was pressured into it because it would look bad for their state.

  • rich1299

    I’ve read the entire bible several times and studied the Old Testament in depth at university. Nowhere in the bible did I find anything about refusing to trade or provide services to people who are sinners, after all according to the bible we are all sinners. There is no religious basis for refusing to provide retail or other services to people who members of whatever Christian sect consider sinners. There are however prohibitions against using your faith for social status purposes as seen in Jesus’s condemnation of the Pharisees. Anyone who is claiming they’re religious so they must discriminate is violating those prohibitions. Its rather unsurprising I suppose that most who claim to be Christians have never actually read the bible except perhaps for short bits taken out of context.

    That’s where I’d normally point out the problems in the common understanding of Leviticus upon which other biblical writers have also based their own prohibition against same-sex sex on. However its a long explanation and I’ve a feeling most reading this already know it since atheists do seem to have a better understanding of the bible than most Christians. That’s largely because atheists don’t have the same confirmation bias that Christians do.

    I’ve little problem with religious freedoms in the workplace for things actually required of a follower of whatever faith since such things never impact anyone who isn’t a follower such as dress, diet, or prayer. But when it comes to imposing personal religious beliefs that usually don’t even have a basis in the actual religion on anyone else that’s totally unacceptable.

    The incredible way religion and politics are intertwined in the US despite its strict separation of church and state amazes me. Traditionally in Canada where I live church and state aren’t totally separated but religion and politics are. Our current PM and his supporters have been working hard to change that, they’ll be gone from government come 2015 but I fear the damage is already done. Our Charter of Rights should prevent the worst abuses from those who wish to mix religion and politics though it does have a “notwithstanding” clause that’s so far been considered political suicide to use in English Canada but who knows what the future will bring.