James Maxwell Koffler*
This week, the Kansas State House passed a bill that immunizes from state law suits individuals, corporations, and governmental officials who based on a “sincerely held religious” opposition to the “sex or gender” of couples deny those couples goods and services. The bill’s intent seems to be to preemptively protect individuals who claim that a judge might compel them to, or penalize them for failing to, provide goods and services to same-sex and other couples, which would constitute state discrimination against their religious beliefs. While the question of how such a bill would sustain federal constitutional scrutiny is mystifying, the philosophy behind the bill is even more enigmatic. Is this bill the Kansas House protecting religious beliefs, or the Kansas House unnecessarily nurturing an exclusionary ideology?
If one of the rationales behind this legislation is to protect the deeply held religious beliefs of an individual or a corporation, whom does this bill protect but those who probably would have acted the same way irrespective of this bill’s existence. Would, say, restaurant owners who would take advantage of this legislation really need big government telling them that it is perfectly okay to not serve a family food based on the innate characteristics of two of its members? My hunch is that those “entrepreneurial” business owners who would employ those commercial techniques are of an independent nature enough to be offended at the notion that Kansas would sway their practice simply by immunizing them from a state tort suit. Maybe a more concrete example will illuminate the picture further. Does the Kansas House really need to tell the Westboro Baptist Church that it does not have to host a ceremony solemnizing the life-long commitment between two men? I am skeptical that the Westboro Baptist Church would need Kansas’s promise of civil immunity from suit to make a decision on that particular use of its facilities.
It might just be that the Kansas House has misperceptions not only of good business techniques, what discrimination is, and constitutional values. But this is also a misperception of the power of state governments to affect the individual consciences and sensibilities of its inhabitants. In short, the Kansas House bill codifies a deeply held religious belief written on many signs in Topeka, a view many Kansans probably do not hold and will not hold assuming the bill becomes a law, namely that “God Hates Fags.”
*James Maxwell Koffler is a L.L.M. candidate at New York University School of Law, class of 2014, and a staff editor on the Journal of Law & Liberty.