During the controversy over Hobby Lobby’s refusal to provide its employees with contraception insurance coverage and the outrage over Duck Dynasty star Phil Robertson’s being denied his supposed constitutional right to appear on television, we witnessed conservative activists stretch the limits of the meaning of religious freedom.
As Justice Scalia put it in Employment Division v. Smith, such an exaggerated view of religious freedom serves “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The Religious Right has increasingly brought this religious freedom argument into debates over gay rights and the teaching of evolution.
In Missouri, Republican lawmakers contend that public school students should get an exemption from any class on evolution — the bedrock of modern biology — if they think learning about science amounts to an “infringement on people’s beliefs”:
Rep. Rick Brattin, a Harrisonville Republican, said forcing students to study the natural selection theories developed by Charles Darwin a century and a half ago can violate their religious faith.
“It’s an absolute infringement on people’s beliefs,” Brattin said.
“Even though what’s being taught is just as much faith and, you know, just as much pulled out of the air as, say, any religion,” he said.
“The bill is one of several anti-evolution proposals that have already appeared in statehouses across the country,” TPM notes. “The proposals would allow for a range of approaches to evolution, from presenting a ‘debate’ over evolution versus creationism to requiring that local school boards allow intelligent design to be included in biology courses.”
And GOP lawmakers in at least three states are now citing religious freedom to claim that anti-gay discrimination that violates civil rights laws should not face any legal consequences.
Of course, many proponents of Jim Crow cited religious reasons to support segregation.
When passed, the new law will allow any individual, group, or private business to refuse to serve gay couples if “it would be contrary to their sincerely held religious beliefs.” Private employers can continue to fire gay employees on account of their sexuality. Stores may deny gay couples goods and services because they are gay. Hotels can eject gay couples or deny them entry in the first place. Businesses that provide public accommodations—movie theaters, restaurants—can turn away gay couples at the door. And if a gay couple sues for discrimination, they won’t just lose; they’ll be forced to pay their opponent’s attorney’s fees. As I’ve noted before, anti-gay businesses might as well put out signs alerting gay people that their business isn’t welcome.
But that’s just the tip of the iceberg. In addition to barring all anti-discrimination lawsuits against private employers, the new law permits government employees to deny service to gays in the name of “religious liberty.” This is nothing new, but the sweep of Kansas’ statute is breathtaking. Any government employee is given explicit permission to discriminate against gay couples—not just county clerks and DMV employees, but literally anyone who works for the state of Kansas. If a gay couple calls the police, an officer may refuse to help them if interacting with a gay couple violates his religious principles. State hospitals can turn away gay couples at the door and deny them treatment with impunity. Gay couples can be banned from public parks, public pools, anything that operates under the aegis of the Kansas state government.
It gets worse. The law’s advocates claim that it applies only to gay couples—but there’s no clear limiting principle in the text of the bill that would keep it from applying to gay individuals as well. A catch-all clause allows businesses and bureaucrats to discriminate against gay people so long as this discrimination is somehow “related to, orrelated to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” (Emphases mine.) This subtle loophole is really just a blank check to discriminate: As long as an individual believes that his service is somehow linked to a gay union of any form, he can legally refuse his services. And since anyone who denies gays service is completely shielded from any charges, no one will ever have to prove that their particular form of discrimination fell within the four corners of the law.