The New Untouchables

The New Untouchables February 26, 2014


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 In the name of “religious liberty”, it would have repealed all equal-protection laws as they apply to LGBT people, allowing any business owner to deny service to a gay customer on a whim: restaurants could turn them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?

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