Would This Anti-Gay Law Be 'Unconstitutional'?

Great Debates
#1

Boy, I hope GD is the place for this topic. I thought of IMHO. But it says it is for “less-than-cosmic topics”, which as you will see, this is definitely not.

I couldn’t believe what I was seeing when I read about this proposed legislation in Kansas. (And yes, I am rather angry too as I write this.) But even more troubling is the following excerpt from the same article:

Forgive me if I am wrong. But aren’t state functions and facilities governed by the U.S Constitution? And hasn’t the SCOTUS ruled repeatedly that gays have the full protection (or something near that) of the US Constitution?

Also, I don’t know if I read it right. But does this mean if a gay person is murdered or the victim of a hate crime, the police can refuse to get involved? I know where I live (MI), they are considering making it legal to refuse emergency medical care on “religious” grounds, which I think is wrong. But even for hate crimes/murder? That’s sick.

Someone, please answer my questions. And, yes, tell me your opinion too (as I said, I am still very angry).

:slight_smile:

#2

There is no reason to be angry, this are the last grasps of a dying beast. It is obviously unconstitutional, it will never be put in effect and it means same sex marriage is winning and the other side is panicking.

#3

I’m no lawyer, but that article seems to be overstating the effect this law would have. The sum of the covered activities are:

Section 1. Notwithstanding any other provision of law, 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:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;
(b) solemnize any marriage, domestic partnership, civil union or similar arrangement; or
© treat any marriage, domestic partnership, civil union or similar arrangement as valid.

Getting from there to “Police don’t have to investigate a crime if the victim was gay!” is a pretty extreme stretch.

#4

That depends on how Kansas’ existing legislation defines the breadth of “services” and “social services”.

Not in so many words. It has repeatedly ruled that classifications based on sexual orientation are entitled to rational basis review (the lowest level of equal protection analysis), though it has repeatedly applied something slightly higher.

This law, though clearly aimed at gays, doesn’t actually classify people by sexual orientation. It doesn’t really classify at all, but leaves it to the individual who is applying it to do the classifying. That means it’s probably constitutional on its face. It may very well be unconstitutional as applied in certain scenarios, such as law enforcement refusing to investigate a crime against a homosexual.

#5

You’re obviously more of an expert on this matter than I, but the law also says this:

So, even in the extreme case that Kansas courts decide that police protection is a social service “related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement”, the governmental entity is still charged with providing the lawful service of police protection.

#6

Well, yes, but that’s probably cold comfort to the guy who gets killed because the “prompt alternative” police officer didn’t arrive in time (or whatever.)

#7

If I read this right, as long as you have “sincere” religious belief, you can freely disregard anybody’s marital status, regarding any services or benefits, public or private.

Creepy.

#8

Certainly.

It’s pretty clearly intended as an anti-gay bill, but you’re right that it’s not specific to gay couples, anyone’s marriage or union can be the basis for denying various services. If you don’t like interracial marriages, or Protestant marriages, or married couples that lived together before marriage, or anything else like that, Kansas would have your back.

#9

I agree with this. Further, I don’t think any court in Kansas or in the federal system would interpret the law as broadly as the horror stories in the media indicate, even though the drafting of the law is very poor.

#10

Does the law specify how a person has to establish ‘their sincerely held religious beliefs?’

#11

I do think the greater bone of contention would be the definition of “related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement,” which as I read it is the only thing that narrows the scope back down into the general ballpark of constitutionality. It seems pretty straightforward to me that a cop who doesn’t respond to a distress call is refusing to provide a service, and I do think the law classifies people – I don’t think you can turn over the freedom to do what would otherwise be unconstitutional by not saying its name out loud. It seems like a much more difficult row to hoe to argue that a murder investigation celebrates the particular marital predicament of the victim, though. Refusing to work security at the wedding, sure; responding to a hostage situation there, I don’t see it.

Which means the bill’s actually reasonably well-tailored to its intended hateful purpose, I suppose. I don’t think it’s poorly drafted. I think Kansas is totally playing by the rules available to it. Which means the problem with it isn’t that it’s going to put gay people into ghettos and Kansas has finally crossed the line into outright de jure segregation; it’s that it puts into starker relief the fact that we don’t recognize homosexuality as something that’s entitled to very much of in the way of basic acceptance. We’ve never come right out and said that being gay is as human and unavoidable and as fundamental as our ethnic backgrounds, genders or our disabilities, so it should be treated the same. As long as that’s the case it seems sort of beside the point whether or not a particular state wants to draw really clear lines about just how much you don’t have to accept the legitimacy of a gay marriage, the point in the end is that you don’t have to.

The phrase is borrowed from Title VII’s anti-religious-discrimination provision so there’s already law on the subject in that context. Generally in that context a person doesn’t really have to establish it; it’s a case by case analysis and beliefs are just-this-close to being presumed sincere.

#12

Nope.

#13

I didn’t want to make a value judgment in GQ, but yes, it’s pretty brilliant in a horrible sort of way.

#14

Haha… how about in GD?

#15

What, and violate the establishment clause?

#16

looks at forum
squints
Oh.

#17

My question is if part © where they allow individuals to treat marriages as invalid goes a bit too far. Parts (a) and (b) have to do with weddings, not marriages, if you take my distinction.

Let’s say I am legally married in Kansas, by someone certified in Kansas to solemnize weddings, following all the laws Kansas puts in place. Kansas is saying they will not require anyone to recognize my marriage as valid, not even their own employees, and they will shield those who do not recognize my marriage from lawsuits.

#18

shrug The state’s authority to ignore marriages is coexistent with its authority to solemnize them. As long as the statute itself doesn’t discriminate between marriages, it might be constitutional. Jimmy is alluding to a question that the federal and state Religious Freedom Restoration Acts leave open - whether the state can permissibly allow discrimination merely by allowing people to decide what sort of discrimination to engage in on their own.

#19

Section 1. Notwithstanding any other provision of law, 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:
(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;
(b) solemnize any marriage, domestic partnership, civil union or similar arrangement; or
© treat any marriage, domestic partnership, civil union or similar arrangement as valid.*
That proviso alone renders 90% of the hysterical handwringing in that article incorrect.

#20

Well it COULD hypothetically apply to these horror stories, which is why I say it is poorly drafted. Note how it says “related to…any marriage…or similar arrangement.”

It’s not an absurd interpretation to say that a cop who arrives on a domestic battery call of a same sex couple deciding to refuse to intervene on the grounds that his religious belief precludes him from treating it as “domestic” violence. Or even refusing to arrest the murderer of a same sex couple because in his Fred Phelps-style religious belief, the murderer was acting properly by killing fags, and the guy wouldn’t have been killed if not for his same sex relationship similar to marriage and therefore the murder is “related to” that relationship.

I don’t think the courts would interpret it that way, but an argument could be made for it.