Kansas House Advances Bill Allowing Religion-Based Discrimination Against Gays

KansasThe Kansas House has approved a bill allowing people, groups, and businesses to discriminate against gay couples based on religious beliefs, the AP reports:

The vote Tuesday was 72-42. The measure advanced even though critics suggested the bill would encourage widespread discrimination against gays and lesbians.

The House plans to take final action on the bill Wednesday, and it's likely to pass.

The Wichita Eagle editorial board condemned the bill in an editorial:

The bill is written both so broadly and specifically – with especially troubling references to “counseling, adoption, foster care” and “employment benefits” – that it would sow confusion at best.

At worst, it would put Kansas on record as valuing some religious beliefs so highly as to justify intolerant and discriminatory treatment of same-sex couples – including those lawfully wed in other states and whose marriages are recognized by the federal government.

The bill directs governments and other nonreligious entities to promptly find another employee to provide the service or otherwise ensure it is provided “if it can be done without undue hardship to the employer.”


  1. kit says

    Won’t this just end up with a legal challenge that will go to the SCOTUS and end up with a decision that puts a stop to this “religious-bigotry-is-OK” garbage once and for all? I hope so anyway.

  2. Luke says

    on what basis can “religious-based” bigotry by private businesses be considered unconstitutional? I can see a First Amendment or 14th Amendment challenge to a law that allows the government to discriminate based on religion, but I don’t see a basis to challenge it to allow private citizens and businesses to do so. If there was a basis, sexual orientation discrimination would be effectively outlawed nationwide already because courts would have ruled that businesses and people cannot discriminate against gays based on the US Constitution. In Romer v Evans, the Court said that states could not prohibit pro-gay antidiscrimination laws in their state constitutions, but it did not say that the US Constitution mandates that anti-gay discrimination be outlawed. In fact, most states already allow employers and public accommodations to discriminate against gay people based on any number of factors including religion, or even no reason at all.

  3. freak says

    A state cannot ban a specific group from utilizing the justice system or governmental entities to redress alleged wrongs perpetrated against it. This was decided in Romer v. Evans.

  4. JT says

    Can I use this law to refuse service to people who are openly christian? I find most of them offensive.

  5. TampaZeke says

    Here are two of MANY reasons why this won’t pass constitutional muster:

    1) It’s unconstitutional to single out one group of people to discriminate against. It would have a better chance, though it still wouldn’t survive legal challenges, if it said that a person could discriminate against ANYONE based on their religious beliefs. And;

    2) It’s particularly unconstitutional to single out a suspect class for discrimination and since the 9th Circuit established that the LGBT community is a suspect class deserving of heightened scrutiny, this bill does just that.

  6. plinx says

    Tennessee has introduced a similar bill. We should be encouraged by this because it means that the bigots realize that state bans on SSM will soon fall, and they’re trying to manage the postgame. These laws are flagrantly unconstitutional, of course, and will never survive any challenge, so don’t get pessimistic or worried. This looks like a complete win for our side for many reasons, public perception that this is vile being chief among them.

  7. Lymis says

    “on what basis can “religious-based” bigotry by private businesses be considered unconstitutional?”

    Most states have laws that explicitly require that public businesses serve all members of the public. Mostly, that’s in response to businesses refusing to serve blacks, but in other areas, the original motivation was to ensure that other groups were not marginalized, such as Jews or the Irish or other immigrants.

    When a law is passed allowing a specific exception to that, even though the behavior being allowed may be that of individual citizens, the law itself is a governmental act, and if there are other laws impacted – the bigots are being excused from following a law that others much follow – then it will be governmental agency and action that will be enforcing those laws unequally, specifically to the detriment of, in this case, gay people.

    THAT’S a government action, and government actions are covered by the Constitution. So, it’s not that constitutionally, the cake baker isn’t free not to sell a cake, it’s that the government isn’t free not to enforce anti-discrimination laws unequally.

    By the very nature of these laws, they only apply when there IS a law that would otherwise be enforced, which would have negative consequences to the lawbreaker, who is getting a special pass to break or ignore those laws on the basis of religious belief.

    And, by limiting, by law, the exception to those other laws specifically to actions taken to discriminate against gay people, rather than giving people the freedom to break ANY law if there is a religious belief that the law is inconvenient, the government is singling out gay people for special mistreatment. The US constitution specifically forbids carving out some citizens who get state protection and some who do not.

    The government is saying, “If you do this to a straight couple, no matter what your religious beliefs, you are subject to all the legal penalties relating to the other laws on the books, but if you do it to a gay couple, no problem” then yes, this is the GOVERNMENT who is discriminating, in violation of Constitutional guarantees.

  8. e.c. says

    How is the law worded? Does is limit itself to ONLY allowing for discrimination against LGBT folks or is it more broadly written? If it leaves itself open to being applied to actual protected classes it will have a harder time standing.

  9. says

    @Luke: What you’re calling “private businesses” are actually no such thing: a business open to the public, even if privately owned, is a public accommodation and, as such, is subject to whatever public accommodations laws exist in the area. In my state, you can’t discriminate on the basis of sexual orientation for religious or any other reason. Other states don’t cover sexual orientation.

    But any law that gives the religious special exemptions to target a group or groups for discrimination are highly constitutionally suspect.

  10. Mike Ryan says

    Yes, it will end up going to the SCOTUS and ultimately shot down but until then Kansas will have made a national statement and other states will follow. If you’re a resident of Kansas I’d certainly poise myself to take legal action and seek compensation from those who supported and voted for such a bigoted law. Work it right and you could gain a pretty penny.

  11. Dan Mc. says

    The “fundies” in the Ohio legislature just introduced a similar bill – The Religious Freedom Restoration Act.”

  12. GregV says

    @EC: According to what I read, the bill is more broadly worded, theoretically allowing people to discriminate against any couple they don’t like “for religious reasons.”
    The proponents argued that there is no discrimiation against gays here, because if the gays don’t like Catholics, they can refuse to serve them, too.
    Of course, the reality is that race, national origin, alienage and religion are established suspect classes.
    Of course, recognizing religion as a suspect class but not sex or sexual orientation makes no sense at all and surely one by one, more states will recognize this.
    But the claim by Republicsn bigots that this bill is not specifically designed to attack gay people or that public officials and private businesses are free to refuse service to Catholics shows that the proponents are not either completely disingenuous, ignorant of Constitutional law, or both. (I’d say it’s both.)

  13. Larry says

    What would stop people from denying service to anyone who violates any law found in the bible? Gay people could deny service to straight people for hundreds of laws derived from the bible. This law works in so many ways.

  14. Ben in Oakland says

    “”on what basis can “religious-based” bigotry by private businesses be considered unconstitutional?”

    We have laws at nearly EVERY level of government forbidding discrimination on the basis of religious belief, yours or mine.

    I suspect this will be yet another gift the antigay give us. I cannot imagine that it will pass muster in SCOTUS without invalidating ALL religious discrimination laws.

  15. Bryan L says

    I have a suggestion for the Kansas lawmakers who voted for this vile bill. Do some research and look at the photos from the years of segregation during which people of color were refused service in white-owned businesses. There’s one in particular you might enjoy. It shows a group of white men, all of whom are laughing as a blonde-haired woman pours mustard onto the head of a young black man as he sits at a lunch counter of a Mississippi drugstore. Does that make you feel good about discrimination?

    Does your discriminatory law mean doctors can refuse to administer health care to gay people? Can paramedics refuse to save the life of someone who is gay or lesbian. Can teachers refuse to teach a gay kid? Can a waitress refuse to take the order of a gay or lesbian customer? Can grocery stores put up signs that say “Heterosexuals only”? What about realtors? What about if an LGBT person applies for a driver’s license? What about firefighters? Can parents refuse to feed their kids?

  16. Sean says

    The LGBT citizens of Kansas need to press federal charges against the state government now. Not after. This is a violation of Constitutional law. It is 100% illegal and NOT real American behavior. Let this go and you will see how far this goes when a hospital refuses to treat you because you are gay but still accepts tax dollars that come out of your pocket.

    Furthermore, until this is legally dealt with (even if the feds need to take over) all LGBT business owners, servers, workers, etc. and any straight allies should refuse to serve or do anything for anti-gay people since the law would apply to you also. That means; to the gay sales clerk at a super market or retail store, refuse to serve anybody who is anti-gay. To the gay waiter or waitress at a restaurant, refuse to serve anti-gay people. To the gay transportation drivers, refuse to allow anti-gay people on your bus, train, etc. To the gay garbage collectors, refuse to pick up garbage from the homes or business of anti-gay trash. To the gay postal worker, refuse to deliver mail to anti-gay trash. To the gay nurse or healthcare worker, refuse to provide care for anti-gay trash. If you, LGBT citizens, do not want to pay taxes anymore to a state government that refuses to protect and respect you and subsidize their homophobic bigotry than you need to stop paying taxes, threaten that if the continue to steal money from your paycheck that you will take it back and various ways via items that money was used to pay for like the chairs those ingrate parasites are sitting on. You need to TAKE your freedom and equality, rights belonging to you by birth and law from the United States Constitution, by physical force now because those fascist barbarians are not going to give it to you and remember you have second amendment rights as well.

    This needs to work both ways. They want an uncivilized, anti-American society where discrimination is a free-for-all based on ANYBODIES deeply held personal beliefs then give it to them full force

    Oh that’s right, this law only applies to anti-gay, anti-American, reich-wing, parasitic, uncivilized, “Christian” TRASH.

  17. TheSeer says

    Does this Kansas bill allow people who have deeply held religious beliefs that Xtianists are not worthy to be called people to discriminate against them?

  18. Profe Sancho Panza says

    The people sponsoring this know perfectly well it won’t pass federal court scrutiny. They’re throwing red meat to “the base” and positioning themselves to scream later (when it’s voided) about the federal gov’t trampling on states’ rights and family values. It’s political theater.

  19. Javier says

    IF the law does not specify or single out same-sex couples or gay people and is broadly written to allow religious-based exemptions to anti-discrimination laws, it is probably going to be upheld as constitutional. As stated, most states do not have any protections against LGBT discrimination even today, and that is perfectly constitutional. Also, even some states with gay marriage laws have afforded very broad exemptions to gay rights laws to allow wide latitude to religious organizations to discriminate against gay couples.

  20. Javier says

    IF the law does not specify or single out same-sex couples or gay people and is broadly written to allow religious-based exemptions to anti-discrimination laws, it is probably going to be upheld as constitutional. As stated, most states do not have any protections against LGBT discrimination even today, and that is perfectly constitutional. Also, even some states with gay marriage laws have afforded very broad exemptions to gay rights laws to allow wide latitude to religious organizations to discriminate against gay couples.

  21. says

    @Javier: It’s not that broad; it’s rather gay-specific, actually. Very hard to argue that it is not singling out one group for discrimination (us) and another group for special exemptions to discriminate (the religious). Therefore, it’s very hard to argue that it is constitutional.

    In states with marriage laws that include gay couples extra (unnecessary) wording has been included in most if not all of them that exempts churches from performing marriages they wish not to perform. No one is contesting that and it would be the case without the extra wording. In states with pro-gay marriage laws and non-discrimination laws that include sexual orientation (not surprisingly, there is a lot of overlap–this may not be the case when marriage comes to more red states), businesses may try to get around the non-discrimination laws, but it’s hard to see how they would succeed in court unless all non-discrimination laws are tossed: unlikely.

    All of this will be tested more as the red states attempt to push back against the inevitable coming of marriage equality.

  22. enough already says

    My, my – was really 1935 that the Nürnberg laws were passed? Seems like only yesterday.
    Oh, right – that was Kansas, not Nazi Deutschland.
    (Bin selbst Deutscher, um die üblichen Beleidigungen vorab zu begegnen.)

    I’m not nearly as optimistic as are many here that this law will fail. It’s exactly the sort of thing many on the Supreme Court would greet with open arms.

  23. SoLeftImRight says

    It has become acceptable for supposed lawmakers to pass blatantly unconstitutional laws. Anyone who votes for this kind of garbage should be banned from public service; they are not qualified.

  24. tonykeywest says

    Oh Yeah , You kept pushing your sin in every ones face demanded they approve of it. it was only a mtter of time till they pushed back. get used to it. It aint over yet.

  25. john moix says