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.