Guest Post: Dan Ray on Right to Discriminate Laws

This is a guest post from my good friend Dan Ray, who teaches constitutional law at Cooley Law School. It’s about the constitutionality of a bill in Kansas (and another in Tennessee) that would allow businesses to discriminate against gay people due to their “sincerely held religious beliefs.”

By Dan Ray

The Kansas legislature is working to pass a law that will allow private individuals and the government to discriminate against gays and lesbians as long as the discrimination is motivated by a “sincerely held religious belief.” Tennessee is trying to pass a very similar law. Students have asked me about these laws. “Can a state really do this?” “Is this sort of thing constitutional?” The answers are “yes” and “no.”

A state can make any law that its lawmakers have the political will to pass. The legislators who sponsor and vote for this kind of a law have made a political calculation that it will score points with the voters who elect them. And no doubt it will. This is Kansas, after all.

But this law is facially unconstitutional. Controlling precedent is a Supreme Court decision called Romer v. Evans. There, Colorado voters approved a state constitutional amendment that withdrew from gays and lesbians the protections of Colorado anti-discrimination laws. Justice Kennedy, writing for the Court, expressed his disapproval in the strongest terms. He said that “it is not within our constitutional tradition to enact laws of this sort.” Discrimination motivated by animus toward a class of people cannot survive even deferential rational basis review. This, said Justice Kennedy, was a denial of equal protection in “the most literal sense.”

The Kansas law (as well as the Tennessee law) is like Romer on steroids. It is clearly and unequivocally motivated by animus against homosexual persons. A federal judge will have no difficulty striking this law on rational basis grounds, as a violation of the equal protection guaranteed by the Fourteenth Amendment.

But it’s important to note that none of this really matters for the Kansas and Tennessee lawmakers who are up to no good here. The point isn’t to create a real law — it’s to pander to the ignorant and credulous voters who will reward those politicians with votes in the upcoming elections. Indeed, this is, for them, a twofer. When a judge does strike the law, the same politicians can call a press conference and denounce the “liberal, activist, atheist judges” who are turning the nation against god. In short, this is a political maneuver, not a legal one.

But it may well backfire, especially if word of what’s happening gets widespread media attention. Most of the people in this country really don’t much care about sexual orientation. They have real problems to worry about…like getting a job, paying the bills, and living life as productive members of society. And — here’s the kicker — they don’t like the idea of a bully picking on others. That is, most people disapprove of this kind of blatant discrimination for the sake of discrimination. This includes, by the way, both independent voters and more than a few people who call themselves Republicans. They’re viscerally turned off by this kind of hatred.

Eventually, there will be a political price to be paid for advocating this kind of nonsense. It may not be in this election cycle or even the next, but it will happen. The best thing we can do is to publicize what’s happening as far and as wide as possible. Sunlight, as the saying goes, is the best disinfectant.

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  • http://www.facebook.com/dskast danielkast

    Isn’t it also unconstitutional on First Amendment grounds? The idea that someone can do something only because of his/her “sincerely held religious beliefs” puts government squarely in the position of determining what is and is not a religious belief (not to mention the practicality of determining if it is “sincerely held”).

    I would think putting a governmental stamp of approval on one’s belief system for the purpose of allowing discrimination falls into the category of “establishment of religion”.

  • jamessweet

    The only surprising part being that the legislators apparently came to their senses, realizing that “eventually there is a political price to be paid for this nonsense.” When’s the last time that happened, eh? Lucky thing.

  • http://www.gregory-gadow.net Gregory in Seattle

    Ed, you’re lagging again: the President of the Kansas Senate effectively killed the bill last week. Basically, even Kansas Republicans think it goes too far and will cause irreparable harm to their party’s brand. They have also apparently heard from a number of businesses and corporations, who vowed to leave the state — and take jobs and tax revenue with them — if the bill passes.

  • rationalinks

    I agree completely, this bill is nothing but political maneuvering to try and pander to the base. I’m a Kansas resident and I can tell you first hand that there has been quite a bit of negative backlash here to this bill. Why the negative reaction to the bill is not getting any air time, I have no idea. Perhaps it’s easier for the media and for the rest of the country to simply agree with a stereotype and nod their heads and say “yup…well, it is Kansas after all” instead of, you know, finding out the truth.

    Don’t get me wrong, there is indeed a large base of neocon godbots here, but the overall reaction to this bill has been overwhelmingly negative. This little stunt is setting up to backfire.

  • http://polrant@blogspot.com democommie

    Can someone explain to me how a bill like this differs in intent or substance from the idiotic “religious exemption” bill discussed on the thread about the phundie pharmacist?

    ““sincerely held religious beliefs” puts government squarely in the position of determining what is and is not a religious belief (not to mention the practicality of determining if it is “sincerely held”)”

    Well, if they show up in 100% cotton, wool or other organic fiber clothing and can prove that they don’t eat any beef in cream sauces or shellfish…

  • eric

    @1:

    The idea that someone can do something only because of his/her “sincerely held religious beliefs” puts government squarely in the position of determining what is and is not a religious belief (not to mention the practicality of determining if it is “sincerely held”).

    The courts do this all the time. Every time some con man tries to start a “charity” or “church” in order to avoid paying taxes (and someone raises a legal question about it), the courts have to look and decide whether its the real thing or a sham tax dodge. So no, the fact that a law requires the courts to distinguish between a sincerely held religious belief and an insincere scam does not (IMO, IANAL, etc…) necessarly mean that that law violates the 1st amendment’s rule against entangelement.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Gregory in Seattle “Ed, you’re lagging again: the President of the Kansas Senate effectively killed the bill last week. Basically, even Kansas Republicans think it goes too far and will cause irreparable harm to their party’s brand. They have also apparently heard from a number of businesses and corporations, who vowed to leave the state — and take jobs and tax revenue with them — if the bill passes.”

    But that’s not exactly the case. Republican senators are looking at a modified version of the House bill that would take out at least one inflammatory provision of the House bill—the extension of “religious liberty” rights to public employees—and perhaps others, like the implicit “right” of private employers to deny employee benefits to religiously “offensive” people.

  • John Horstman

    @democommie #5: Well now you’re just describing hippies. :-)

  • Michael Heath

    Gregory in Seattle writes:

    Ed, you’re lagging again: the President of the Kansas Senate effectively killed the bill last week. Basically, even Kansas Republicans think it goes too far and will cause irreparable harm to their party’s brand. They have also apparently heard from a number of businesses and corporations, who vowed to leave the state — and take jobs and tax revenue with them — if the bill passes.

    True, but this is still an incredibly relevant and insightful post given the fact we know there are state legislators chomping at the bit to pass laws that discriminate against gays, amplified by their desire to show libertarians and conservatives they’ll protect property rights at the expense of hated ‘others’.

    In addition I’m grateful Dan Ray reports on the logic and precedent necessary to determine who wins in this competing rights controversy. Where I find that argument convincing.

  • cptdoom

    The law is also redundant, and if the legislators in these states want to pander to their right-leaning constituents, they should simply point out that discrimination against same-sex couples is totally legal in those jurisdictions, and would remain so even if the Supreme Court overturns the statewide ban on same-sex marriages. Certainly government officials couldn’t discriminate against same-sex couples, but private businesses could, because no state or federal law includes sexual orientation as a protected class. Ironically, the law could actually stop the practice that is perfectly legal and acceptable right now.

  • http://www.gregory-gadow.net Gregory in Seattle

    @MO #7 – From everything I’ve read, these modifications are a sop to the voting base, a “see, I’m pro-business” pose for the donors, an effort to repair the damage the bill is doing to the state and national party, and the first step in a kabuki play that will lead to the “moderates” in the Senate deadlocking with the extremists in the House. In short, it is dead in all but name, and will be buried quietly without a public notice.

    @Michael Heath #9 – I did not mean to disparage a very well written analysis of the Kansas bill, merely point out that the Kansas Senate is trying to kill the bill quietly while not pissing off their base.

  • eric

    cptdoom @10:

    Certainly government officials couldn’t discriminate against same-sex couples, but private businesses could, because no state or federal law includes sexual orientation as a protected class.

    That may be true on paper (for most states), but I think the people supporting this legislation view themselves as being one wedding photographer or wedding cake baker away from their state court’s ruling against such dicrimination being legal. And, let’s face it, absent some state constitutional language saying they can discriminate, or a strong law letting them, they’re probably right about that. So IMO they have an internally rational reason for passing such legislation, which is to make explicit a right (to discriminate) that would not necessarily stand up to a court challenge while it’s (only) an implicit right.

    I’m talking about the real supporters right now.; the constituents to whom the politicians are pandering. I agree with several of the commenters above that most of the legislators are probably doing this more for the political theater aspect.

  • tomh

    eric @ #6

    the fact that a law requires the courts to distinguish between a sincerely held religious belief and an insincere scam does not (IMO, IANAL, etc…) necessarly mean that that law violates the 1st amendment’s rule against entangelement.

    Exactly right. As long as the laws provide exemptions on the basis of religion, which an untold number of US laws do, there has to be a government definition of religion. And virtually every government definition of religion, from the IRS to CAPTA, (which is the ultimate authority for parents who deny children medical care for religious reasons), includes the phrase, “sincerely held religious belief.” If a question arises about whether a religious belief is “sincerely” held or not, of course the courts have to decide. Who else would do it?

    For someone to blithely claim that government can’t decide what is and is not religion simply shows an ignorance of the American system. Government decides this issue all the time.

  • martinc

    There seems to have been one casualty of the bill – Charles Macheer’s Facebook page. He’s the sponsor of the Kansas bill. After a week where every post he made got swamped with dozens of comments pointing out his bigotry (my fave example was “had breakfast with Republican legislators” getting the comment “was it served with a side of hatred?”), he had a little whine about how many offensive posts he was having to delete, but even the non-offensive ones were running pretty much 100% against him, and totally overwhelming anything he had to say on other issues (possibly it didn’t help that in one post wishing happy birthday to the State of Kansas, he incorrectly quoted the motto of the state as “Ad astra per aspera” instead of “Per aspera ad astra”). What was refreshing was the number of comments from Kansas residents themselves telling him angrily that he was making their state the public face of bigotry.

    Anyway, a couple of days ago he apparently ran up the white flag and his Facebook page is no longer publicly visible. Possibly, just possibly, bigots are beginning to faintly see that there is a public price for public bigotry.

  • RickR