Initially, it looked like a bill to provide sweeping sectarian exemptions to civil rights laws was going to easily become law in Kansas. It sailed through the state legislature’s Republican-controlled lower chamber, and was expected to cruise through the Republican-controlled Senate and then be signed into law by the state’s Republican governor.
But it turns out this bill wasn’t just a Very Bad Idea, it was also a Very Badly Written Very Bad Idea. Once some of the big-business, Chamber-of-Commerce types actually read the bill and understood what it would do, they scurried to put the kibosh on it in Kansas’ state senate. That version of the bill seems dead, but Kansas Republicans still seem intent on pursuing this Very Bad Idea in some revised and rewritten form.
This bill is the epitome of the recent effort to redefine “religious liberty” as a way of enshrining the privileges of the privileged. It is an attempt to, in Thomas Jefferson’s phrase, secure a “monopoly on worldly honors and emoluments.” The thing about monopolies, of course, is that unlike liberties, they can’t be enjoyed by everyone — only by the select chosen few.
Mark Joseph Stern provided one of the clearest introductions to this Kansas bill earlier this month in a piece bluntly titled, “Kansas’ Anti-Gay Segregation Bill Is an Abomination.” He’s talking about the same piece of legislation. The “religious liberty” bill is also the “anti-gay segregation” bill — that’s the point. It’s an attempt to monopolize religious liberty — to monopolize religion itself and liberty itself — so that they are solely the property of one class of people. And LGBT people would not be a part of that class or of that monopoly.
Here’s Stern:
On Tuesday [Feb. 11], 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. …
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 gay people that their business isn’t welcome.
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 breathtaking. 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.
This is not a new idea. Religious liberty was part of the argument for previous iterations of laws exempting select majorities from permitting select minorities from access to public spaces, services, goods and accommodations. This law would have the same effect as those laws. It would be, as Jamelle Bouie writes, an “Anti-Gay Jim Crow“:
While the bill is presented as a measure directed explicitly at same-sex couples, the language is much more ambiguous. One clause allows discrimination as long as the transaction is “related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.”
Dimmitt, Texas, 1949.
There’s no way to know if a given transaction is related to a gay partnership. In most cases, there’s no way to know if someone is gay. But that doesn’t matter. Under this bill, if you believe someone is gay and purchasing something or making arrangements for the sake of a civil union or same-sex marriage, you can deny them service. Indeed, they don’t even have to be gay. Anyone suspected of working towards those ends could be subject to legalized harassment.
To put this simply, the Kansas House has just endorsed a comprehensive system of anti-gay discrimination. If it becomes law … it will yield a segregated world for gays and their allies, as they are forced to use businesses and other services that aren’t hostile to them.
Looking at this bill, I don’t think it’s an exaggeration to call it a close cousin — if not sibling — of Jim Crow (natch, for black gays and lesbians in the state, there’s little difference). Like its Southern predecessors, this proposal is meant to isolate and stigmatize a despised minority, under of the guise of some higher priority (“religious liberty”). And while this bill doesn’t sanction violence, that was also true of Jim Crow.
Or, as Andrew Sullivan put it, “If you were devising a strategy to make the Republicans look like the Bull Connors of our time, you just stumbled across a winner. If you wanted a strategy to define gay couples as victims and fundamentalist Christians as oppressors, you’ve hit the jackpot.”
I also like what Sullivan had to say about the disgraceful guise of “Christian” religious liberty as the pretext for this bill:
As for the allegedly Christian nature of this legislation, let’s not mince words. This is the inversion of Christianity.
Even if you believe that gay people are going to Hell, that they have chosen evil, or are somehow trying to subvert society by seeking to commit to one another for life, it does not follow that you should ostracize them. The entire message of the Gospels is about embracing those minorities despised by popular opinion. Jesus made a point to associate with the worst sinners – collaborating tax-collectors, prostitutes or lepers whose disease was often perceived as a sign of moral failing. The idea that Christianity approves of segregating any group is anathema to what Jesus actually preached and the way he actually lived. The current Pope has explicitly opposed such ostracism. Christians, far from seeking distance from “sinners”, should be engaging them, listening to them, ministering to them – not telling them to leave the store or denying them a hotel room or firing them from their job. But then, as I’ve tried to argue for some time now, Christianism is not Christianity. In some practical ways, it is Christianity’s most tenacious foe.
But Christianism was precisely the driving force behind this proposal. It’s part of the fearful politics of resentment determined to “Take Our Country Back.” Self-identification as a particular kind of Christian is part of what that “our” signifies.
Part of the problem, though, was that the not-very-bright folks who drafted this attempt to legislate Christian privilege imagined that they could correct — or, at least, mask — the bill’s brazen violation of the Constitution if they just avoided spelling out that it was only meant to apply to their favorite variety of Christian. They seemed to dimly perceive that saying that explicitly would be unconstitutional, so they were cautiously vague about just what they meant with their redefinition of “religious liberty.”
And that, happily, is why the conservative Republicans of the Kansas Senate killed this bill.
Republican Sen. Jeff King, who chairs Kansas’ Senate Judiciary Committee, said, “The bill was not as narrowly tailored as it needed to be. … We need razor precision in the language of the bill as to what religious liberties we’re trying to protect and how we protect them in a nondiscriminatory fashion.”
Opponents included the Kansas Chamber of Commerce, which said that the measure could lead to increased costs for businesses. The chamber took particular exception to a provision in the bill that said that if an employee of the government or “other nonreligious entity” objected to providing a service based on religious beliefs, the employer would have to find another employee to fill in or find some other way to provide the service.
Businesses aren’t keen on the idea of redefining “religious liberty” to provide a sectarian exemption to everything. Once you tell sectarian believers that they’re free to disregard the law and the civil rights of others, they may get the idea that they’re also free to disregard orders and instructions from their employers.
(That’s why big business isn’t rushing to support Hobby Lobby and the other for-profit companies fighting for a corporate version of this elastic exemption. Hobby Lobby says it should be exempt from the law because it has a sincere religious belief that abortifacients are immoral and also a sincere religious belief that contraception is an “abortifacient.” It doesn’t matter — to them or to their legal claim — that contraception doesn’t work like that, all that matters is the sincerity of their belief that it does. Plus, “abortifacient” is a really big word, so it must be true. If that argument wins the day, then employers are in for a major headache — dealing with employees who can now refuse to do their TPS reports because they have a sincere religious belief that TPS reports are an “abortifacient.”)
Kansas senators also heard from other groups who objected to this bill. The Episcopal bishops of Kansas publicly and angrily denounced the bill, saying it was “reminiscent of the worst laws that permitted discrimination against people on the basis of color, sex or nation of origin” and “an affront to the beliefs of all Kansans who support equal treatment under the law for every human being.” And other religious leaders in Kansas also chimed in to oppose it.
I like to think those efforts made a difference, too, but mainly it was the business lobby’s opposition that killed this thing.
And that’s a problem, because it means that this bill may simply get reworked to address the very specific self-interested concerns of the business community and then reintroduced, otherwise unchanged. It will remain an affront to anyone who supports equal treatment under the law, but not in a way that would cause any problems for the Chamber of Commerce.
In an excellent write-up on this bill’s progress and possible demise, Doctor Science writes “What’s striking to me is that the Kansas bill is incompetently written, even though it comes out of a high-powered national group.”
Rep. Charles Macheers, R-Shawnee, who introduced the bill … did not write the bill and said he did not know its origin. It was crafted by the American Religious Freedom Program, an organization based in Washington D.C. Similar bills are being considered in Tennessee and South Dakota.
And not just those three states — Dylan Scott reports that similar efforts are also under way in Idaho, Arizona, Mississippi and Kentucky.
Anyway what is this “American Religious Freedom Program”? Doctor Science tells us that it’s “part of the Ethics and Public Policy Center, ‘dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.'”
Ah, OK. Now the bill’s incompetence, clumsy overreach and vapid attempts at cleverness make sense. The Ethics and Public Policy Center — sometime home of former Sen. Rick Santorum — is basically George Weigel, Inc. Weigel is part of the First Things clique, but more importantly here, he was also one of the three writers and proponents* early signatories of the Manhattan Declaration. So that explains that.
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* Edited: Weigel was an early signatory of the Manhattan Declaration, and is a buddy of the writers, but those were Chuck Colson, Robert George and Timothy George. Got my pseudo-intellectual, right-wing apologist Georges mixed up. (Wrong George.)
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