Where I live — and I’m sure where you live, too — stores and restaurants have this trite habit of posting little rainbow stickers on their doors to indicate that they are, in fact, gay-friendly places of business. I say “trite” because the whole tradition has always seemed so pointlessly showy and self-righteous. Obviously, in this day and age, no sensible shopkeeper actually cares if his customers are gay or not — all he’s interested in is whether they buy something or not. In fact, I’d very much guess that was the case in more intolerant days and ages, too. Commerce has always been the great equalizer.
Once in a great while, however, you do hear exceptions. There was a case in Canada a few years ago wherein a lesbian wanted to get her traditional boyish haircut at some Muslim-run barbershop, only to have the Muslims say no. A few years before that, a Christian-owned waterfront pavilion in New Jersey denied a same-sex couple the right to hold a civil union ceremony on their property. And last summer, a Christian baker in Colorado made headlines after he refused to make a wedding cake for a pair of gay fiancées. In all three cases the offended homosexuals ended up suing for discrimination; in all three cases freedom of religion was the defense of the shop owners. And in the Colorado and Jersey cases, at least, judges ultimately ruled that victimization of gays was a worse offence than infringing the free exercise of religion (the Canadian case was settled out of court).
These are obviously weird and isolated case studies of oddly dogmatic businessmen, but some conservatives nevertheless hear frightening rumbles of a fundamentally shifting legal landscape from stories like these. Specifically, they see signs that the ability of religious Americans to make business decisions inspired by their faith — namely, decisions about who to do or not do business with — in danger of vanishing forever under a new order that makes the all-costs prevention of homosexual hurt feelings society’s highest priority.
Get enough people with these sorts of fears elected to public office, and you wind up with legislation of the sort the Republican-controlled Kansas legislature passed last week, a bill that supporters claim is a mild effort to shore up the rights of the religious but critics claim signals the ominous beginning of outright gay segregation.
Branded “an act concerning religious freedoms with respect to marriage,” Bill-2453 declares that “no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender,” with “the following” including providing “any services,” offering any “employment or employment benefits,” and, of course, solemnizing or celebrating any “marriage, domestic partnership, civil union or similar arrangement.”
The bill is not long, but written in quite dense legalese. If given to a stranger without context, it would probably not be obvious what its purpose or motive was. It does not contain the word “gay” or “homosexual,” and only makes a single reference near the end to “same-gender unions or relationships.” Ostensibly, the bill is all about preventing the state government from forcing individuals and religious entities into doing things that violate their beliefs “regarding sex or gender,” while also giving those same parties a statute to cite in their defense should they ever be formally prosecuted for said denials.
It’s not hard to imagine the wording of a much more to-the-point law. Say, “all individuals in Kansas have a right to freely discriminate against homosexual persons as they see fit.” But that, of course, would come off as mean and nasty, and even the state’s very conservative governor, Sam Brownback, says he wants “every human life to be treated with respect and dignity” — even the gay ones. So instead a more convoluted conceit is offered up, in which all anyone’s actually concerned about is the right of religious folk to not be prosecuted by the government for their beliefs. And what decent person could be against that?
The question as to whether or not a constitutional right to discrimination exists, or whether it’s a violation of the 14th amendment’s guarantee of “equal protection” for all citizens remains very much contested. Rand Paul got in hot water a while back for saying that he felt the 1964 Civil Rights Act went too far in giving government the tools to punish private businessmen for their “boorish behavior” — in this case, racially-segregated lunch counters and the like — while his critics, including President Obama’s press secretary, claimed such a debate was “settled a long time ago” and the conversation “shouldn’t have a place in our political dialogue” anymore.
It’s also possible, however, to have a position somewhere in the middle; one recognizing that not all discrimination is created equal, and that while some forms are unjustified, and may deserve legal reprimand, others may be understandable — sane, even — given certain contexts. Here I’m thinking of a guy in my own city who idiotically sued a women’s only gym for gender discrimination a while ago, or the Sikh fellow in Toronto who filed suit after he wasn’t allowed to play in a go-kart park because his religion forbids the wearing of helmets.
For what it’s worth, I find most modern gay-discrimination lawsuits over petty things like wedding cakes and haircuts spoiled and grating — the very epitome of first world problems — not to mention a historically ignorant exaggeration of what true bigotry even is. Better judges would have dismissed them as frivolous.
Yet at the same time, legislation like Kansas’ seems very much an overzealous, heavily political solution in search of a problem. Theirs is a promise to turn gay discrimination into an absolute, incontestable right, as opposed to a heavily conditional one whose free exercise is only occasionally justifiable in a few very specifically religiously-inspired contexts.
But who ultimately gets to draw the line between acts of justified and unjustified discrimination? Certainly not politicians in our modern era of identity-politics. Be they on the right or left, a lawmaker’s first impulse will always be to strengthen legal protections for the biases of whoever elected them — in the case of Kansas Republicans, evangelical Christians — and weaken those of those who didn’t.
No, the fairest fix to questions of competing rights is as it’s always been — a broad constitutional guarantee of equality of all citizens, with alleged violations weighed on a case-by-case basis by a pragmatic and independent judiciary.
The fact that this status quo is often flawed in practice doesn’t deny that it’s still the best solution we’ve yet devised.