Just when you thought certain American principles were settled law, along come the good people of Kansas to argue otherwise.
In this case, it’s the principle that no persons in the United States can be denied service at a place of business purely on the basis of who they are.
According to the Kansas House of Representatives, however, an individual can be turned away in such a fashion, provided that the owner of such an establishment has a faith-based objection to that person’s genetic and/or cultural makeup.
Long story short: Kansas wants to be able to discriminate against gays, on the grounds that God says homosexuality is an abomination that is undeserving of equal treatment under the law.
To be precise, House Bill No. 2453 stipulates, among other things, that “no individual or religious entity shall be required by any governmental entity to […] [p]rovide any services, accommodations, advantages, facilities, goods, or privileges,” if doing so “would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender.”
The bill passed in the Kansas House on February 12 by a score of 72-49. However, it died in the State Senate this past Tuesday, due to a lack of support in that chamber, although backers have vowed to resurrect it in some form. Other states have introduced similar bills in recent months, including one in Arizona that passed both houses of the state legislature this past week.
We have faced this “religious exemption” question for a long time. It has featured prominently in the debate over the Affordable Care Act’s provision regarding employer-funded contraception. (To wit: Should an employer be compelled to pay for employees’ birth control if he or she is morally opposed to birth control?)
On gay marriage and gay civil unions, a “religious exemption” has sometimes been included in a particular bill as a political compromise: A state will agree to recognize same-sex marriages, but not force objecting clergymen to officiate over them.
However, bills like the one in Kansas represent a different animal altogether, owing to how far beyond the walls of synagogues, churches and mosques they reach.
Supporters of the Kansas bill insist their intent is merely to “protect” people such as florists and wedding photographers from effectively endorsing a practice to which they might object. However, the language of the bill—not least the excerpt quoted above—would seem to cover any business owner of any sort who happens to find homosexuality repulsive.
As Andrew Sullivan rather arrestingly pointed out, had such a bill passed, the proprietor of a lunch counter could refuse to serve gay customers on account of their gayness, and the government could do not a thing to stop it. Does that sound like justice to you?
The underlying assumption in all this is that the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” is absolute. That the government cannot prevent someone from engaging in an activity that his or her religion demands he or she perform.
Actually, it can. And it does it all the time, albeit in a manner that calls into question the meaning of the words “free exercise.”
Sikhism, for example, mandates that its adherents carry a ceremonial dagger, known as a Kirpan, on their person at all times. This injunction has led to various scuffles and lawsuits over the years challenging whether, and to what extent, the government may regulate the carrying of a weapon in public places such as schools and airports. Religious accessory or not, a knife is still a knife.
Prior to 1890, the Church of Jesus Christ of Latter-day Saints allowed for men to take more than one wife—a legal arrangement the United States plainly did not, and does not, permit. The Mormon Church ultimately abandoned its tradition of plural marriage—not least to secure statehood for Utah—but were it to change its mind, the United States would be under no obligation to honor such a “free exercise” of one’s faith any more than it would for a religious sect that preached in favor of slavery, rape or the subjugation of women.
In short: The stipulations of a particular religion cannot take precedence over the law of the land, should the two come into conflict.
In the instance of Kansas (or anywhere else), the right to the free exercise of religion does not extend to denying others the rights otherwise guaranteed them by their government.
Whatever their motivation, some acts are just plain wrong.