There's No Place Like Homophobic Kansas

AP Photo/Orlin Wagner

Representative Ray Merrick, speaker of the Kansas House of Representatives, which passed a broad bill allowing discrimination against gays and lesbians last week.

Count it as yet another thing wrong with Kansas, where schools teach kids Adam and Eve rode the dinosaurs and it's safer to be a gang member than an abortion provider. Last week, lawmakers in the state's Republican-controlled House of Representatives set off outrage across the country by passing a law that would not only make it legal for private businesses to discriminate against gays, lesbians, and transgender people; it would also permit state employees—long obliged by our legal tradition to serve all customers on equal terms—to deny LGBT people basic services as long as they are motivated by "sincerely held religious beliefs." Narrow exemptions for religious and religiously-affiliated institutions have increasingly become a standard part of gay-marriage bills as more and more states begin to enact equal marriage legislatively instead of in response to a court ruling. But the Kansas law goes far beyond such targeted exemptions by sanctioning anti-gay discrimination in nearly every arena of public life. Get in a car accident? You'd better hope the triage nurse at the public hospital's not a Rush Limbaugh fan. 

What makes Kansas House Bill 2453 especially vicious is that it's already legal to discriminate against gay people in Kansas, where gay marriage has been banned by constitutional amendment since 2006. Unlike states like New York or California, which outlaw discrimination on the basis of sexual orientation in employment and "public accommodations," gays and lesbians in Kansas have no similar laws making it illegal to kick someone who is gay or lesbian out of a restaurant on Valentine's Day, refuse to rent them an apartment, or fire them from a job on account of their sexual orientation. "This is new in that the Kansas law aims to create exemptions to protections that don't even exist yet," says Jenny Pizer, law and policy director at Lambda Legal, a gay civil-rights group, and a member of the legal team that successfully challenged California's gay-marriage ban. "It's the exemption before the rule is even on the books." Despite claims from supporters that the bill safeguards "religious liberty," Kansas Republicans' attempt to strip rights from a minority group that has none can only be interpreted as a mean-spirited attack motivated by prejudice. As the Daily Beast's Jamelle Bouie writes, it's the equivalent of Jim Crow.

Thankfully, it looks like the Kansas bill is going nowhere. Responding to the avalanche of news stories sounding the alarm among gay-rights supporters, the president of the Republican-controlled state Senate assured the bill would not pass the chamber in its current form. "Public service needs to remain public service for the entire public," she said in a statement. Kansas's anti-gay discrimination bill was a clear case of conservative overreach, says Douglas Laycock, a law professor at the University of Virginia who has advised state legislatures on crafting religious exemptions to gay-rights legislation—one that could make it harder for religious conservatives to secure more narrow exemptions in the future. "It plays into stereotype from [gay-marriage supporters] that there's no difference between religious faith and plain old-fashioned bigotry." 

Kansas's anti-gay discrimination law is just the beginning. As I argued back in November, seeing defeat on the horizon in the gay-marriage wars, social conservatives have shifted gears. Instead of trying to stop the tide of social change, they are seeking to exempt themselves from it under the banner of "religious liberty." Typically, social conservatives have pushed for exemptions in blue states like New York or Vermont only once the legislature has begun considering gay-rights legislation. But starting with Kansas, followers of the gay-marriage saga should expect to see more and more red states considering such preemptive measures as stand-alone bills. 

This strike-first strategy is nearly identical to the one conservatives adopted after Hawaii's state Supreme Court struck down the state's ban on same-sex marriage in 1993. In the wake of that scare, lawmakers there and in 29 other states amended their constitutions to outlaw same-sex marriage. Now, as these bans succumb to history, the right has begun erecting new barriers. "A lot of religious conservatives come back to get exemptions only after they lose, by which time they have zero bargaining leverage," says Laycock, who supports same-sex marriage as well as more narrow exemptions to protect religious conscience. "[The Kansas bill] is an attempt to lock in religious-liberty protections before they become more difficult to enact." With public opinion shifting quickly on gay rights, the window of opportunity for such exemptions is closing fast.

If you look at how quickly the ground has shifted since last summer's Supreme Court ruling striking down Section 3 of the Defense of Marriage Act (DOMA), which precluded the federal government from recognizing same-sex marriages performed in the states, it's no surprise why legislators in red states are rushing to act. Since then, it's been open season on state gay-marriage bans. Within a month of the DOMA decision, lawyers filed lawsuits seeking equal marriage in five states. By the end of the year, nine more states saw their bans challenged in the courts. Since 2014 kicked off, gay-rights legal advocates have sued the state of Florida, Arizona, Missouri, Louisiana, Alabama, and Wisconsin. They aren't just taking their case to the courts; they're winning. The number of states recognizing same-sex marriage has doubled in the last year. It's all part of the "roadmap to victory" outlined by gay-rights group Freedom to Marry, which seeks to get gay marriage in a critical mass of states before going back to the Supreme Court—a benchmark the movement seems to be approaching more quickly than expected. Freedom to Marry founder and President Evan Wolfson says he expects gay-marriage to be back at the high court by 2019.

The idea that the advance of gay rights poses a threat to religious liberty isn't entirely new—or limited to the gay marriage debate. Social conservatives have raised the specter of religious persecution as legislatures consider anti-discrimination legislation covering LGBT people. They've also sought to exempt religious students from anti-bullying legislation and challenged the contraception mandate of the Affordable Care Act on similar grounds. In the public debate over same-sex marriage, some opponents of marriage equality have warned that if gay marriage passes, religious officials will be forced to perform same-sex marriages or hire a gay, lesbian, or transgender employee; the First Amendment clearly precludes such a scenario. Even so, blue-state legislatures have reiterated that same-sex-marriage laws should not be construed in such a way simply to appease social conservatives. 

The real area of debate, those on both sides of the issue say, is whether religiously affiliated institutions like schools or churches and for-profit, non-religiously affiliated businesses should be able to turn away gay and lesbian customers. It's the wedding-cake scenario, where an employee at a bakery or a photographer is asked to provide services to a same-sex couple celebrating a wedding. Thus far, efforts to insert what are known as "wedding vendor exceptions" in gay-rights legislation have been unsuccessful. There's an obvious reason for that. "They fail because those are blue states," says William Eskridge, a professor of law at Yale University. "If the state is liberal enough to enact same-sex marriage, it's not going to be willing to protect merchants in this way."

As the Kansas debacle suggests, socially conservative states are inclined to pass more expansive exemptions. But legislators in other red states will likely take a lesson from the debacle and limit their scope; however, they will still be broader than those in, say, liberal Massachusetts. Just how broad depends on how quickly legislators in red states act. With each passing day—and whether or not it's accurate to say all exemptions to gay-rights laws are driven by prejudice—public opinion shifts more and more to seeing "religious liberty" exceptions as a guise for discrimination. "Gay-marriage opponents are trying come up with ways to stall whatever the new norm might be," says Douglas NeJaime, a law professor at the University of California, Irvine who studies sexual orientation law. "But it's really a way to try to make any right to same-sex marriage less meaningful."

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