This post is about “That Law,” that was passed by the house in Kansas, my home state, but likely won’t go further. More to the point, it’s about all the hullabaloo that has surrounded it, “this horrible and hateful war on people,” as one blogger put it (who, by the way, started her piece with a lovely snippit of what life in Kansas is like, which I’ll quote as an epilogue).
I am talking, of course, about House Bill No. 2453:
What is this all about?
Now, if you listen to the media (i.e., the people who get paid when you watch, so that they can sell you shampoo and beer), this bill was written expressly to “deny service” to gay folks who wished to publicly celebrate their unions, civil or otherwise. It seeks to “enshrine segregation,” and represents a revival of the “Jim Crow” laws.
And it’s a load of hooey.
What is this all REALLY about?
Really, though, it’s about the oldest right in the management book. This right:
That’s right, folks. You don’t have to agree with the shopkeeper, but it’s his (or her, or whatever’s) shop to keep. This is a basic principle is intrinsic to business. One should not be forced to do something they find morally reprehensible simply by virtue of them being gainfully self-employed as a baker/photographer/etc.
What KHB 2453 says is simply this: The government won’t force you to act contrary to your 1st amendment protected religious beliefs. Period. More exactly,
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.
And it then goes on to list the actions which the government cannot force you do do:
(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
(c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.
If you’re morally opposed to the idea of such practices, you should not be forced to facilitate them in anyway against your will. Period. My untrained legal eye reads nothing else there, but I am open to correction on this point.
Even If I’m wrong, though, and there is some sly legal jargon that could decimate legitimate rights, I still think that that’s clearly the intention of the bill.
And I think it’s a noble intent, any gaffes aside.
EDIT: Friend, with legal training, and who may or may not have had soiled Wheaties for breakfast, shared this with me:
I do want to address the bill itself, because I think the idea is more nuanced than just protecting wedding businesses. I really do think it’s about disenfranchisement, and here’s why: the problem with this law in particular is that it’s not just a reiteration of “a private business owner/operator may refuse service to anyone equally at his own discretion.” If it were, I’d have less of a problem with it.
What it says is that anyone can refuse basically anything (including counseling, social services, etc.) to anyone for any reason “related to a marriage/dom part/civil union or to the celebration of a union, etc.” That covers A LOT of stuff for a very specific group of people. It’s not just limited to wedding cakes and photography. “Related to” a domestic partnership can mean “just because you’re in a relationship and you’re gay” and could very easily extend to denying rights like counseling or private education to the children of gay couples, because children are clearly a related product to the union.
This bill has left very wide open the definition of “related to marriage or the celebration of marriage” while at the very same time clearly narrowing the target class of people that this will affect: gay people. It says “marriage” generically, but no one is denying housing to the guy who is divorced and remarried to his mistress, even though it’s “related to marriage” and we’re morally opposed to that too. We are, however, denying housing to gay couples who are living together.
The extremely broad potential effects and high chance of abuse of this law (people claiming sincere religious conscience but are really just bigoted) is what makes it so dangerous; the clear intention to target a specific group (gay people who are married/civil union-ed) is what won’t pass Constitutional muster. I agree with your underlining point about hierarchy of rights and that business owners should be able to choose with whom they do business and that bullying someone into providing services they don’t want to is absolutely not the way to go. But if we’re just hoping to protect wedding vendors from gay bullies, this bill isn’t the way to go either, and the writers are mostly lawyers…they know that.
They wrote it the way they did intentionally. Frankly, they know it’s not going to hold up under any kind of scrutiny. This bill is for political points, and when it gets slapped down by an appellate court they can just blame the liberal courts/feds/etc. as the bad guys and still get voted in. It’s sad, but there’s my opinion. Thanks for the post, I’m glad people are willing to have a rational discussion about this.
A right and a wrong
There are two claimants to rights being infringed upon in this case. Only one of them is actually being infringed upon – or in danger of being infringed upon.
On the one hand, you have the age old belief, enshrined in the constitution but rooted in something far more profound, which says that conscience is not to be tampered with lightly. It may be mistaken, and we may or may not be fully culpable for that incorrectness of belief. But so long as we sincerely hold it, we ought to not be forced to act against it so long as it is not infringing upon a more pressing or primary right.
Such pressing rights include the right to life, for the right to life is primary. That is to say, you cannot have freedom of conscience without it. So, refusing reasonable life-saving treatments simply isn’t okay under most circumstances (though should you be, say, a Jehovah’s witness AND a doctor, there are 99.999999% of the time other attending physicians and nurses who can administer blood transfusions).
On the other hand, you have a very modern sense of entitlement and pseudo-tolerance that says essentially that any and all lifestyles are equally valid – except lifestyles that don’t accept this premise.
And among the “rights” claimed by this group are:
I’m sorry, but no. Those are not rights. At the very least, forcing people who don’t want to provide these goods and services to provide them anyway, against their will, is NOT a right.
For example, I like meat. It’s tasty. But I’d not think that, just because a vegan restaurant refused to serve me a bacon double cheeseburger, that I could take legal action against them, even if I think they place a mistaken amount of emphasis on animal life (to be fair, I actually respect vegans, and I’m aware of the health-benefits that come with such a lifestyle, apart from the B12 that you can only get from meat).
Simply put, they have a right to live by their conscience. And this right outweighs my right to tasty steak cooked just on the under-done side of medium, even if I think they’re horribly mistaken about the morality of eating meat.
See, my rights end where your nose begins. And vice versa for you. Where the two are purportedly clashing, one of them must yield, and it ought to be the more primary one – the more basic one.
You very well have the right to love who you love and feel what you feel. (You may or may not have the right to re-appropriate the
word concept of marriage, but that’s a different argument all together.) You do not have the right to force me to bake a cake for you to celebrate your wedding, or else shut down shop and go out of business. That is no choice.
But that is the choice that many people are pushing towards, as I cited above.
And that’s fascism.
(Other “rights” that some have claimed to take precedent over the rights of conscience are the rights to class 1 carcinogens for the sake of stopping natural and healthy bodily functions (i.e. birth control, also abortifacients), just to name a few.)
Hate is not okay on either side. But when it comes down to it, when planning to celebrate “the big day,” (Gay, Straight, or otherwise), should the person you’re considering for your photographer or baker or banquet hall etc say “no” – for whatever reason – then you should (Nay! MUST!) respect that.
To go out of your way to file legal suits to force them to bow to your desire for cake and a dance hall is to bully another.
It makes you an intolerable prig. And there is a swelling number of such folks out there today, who will punish you for siding with 99+% of humanity.
The strongest counter-argument
This is not actually likely to be the strongest argument one can make against the above position. However, it’s one that has come up a lot lately. “Ah-ha!” one might say (and many have, some to me directly). “Mr. Smarty pants over here, if you REALLY stand behind what you said above, then you MUST stand behind this:
To which I say: I do.
But before you jump to the com box, hear me out.
This is NOT an endorsement of that position. Far from it. I find it narrow-minded as a kind euphemism.
But should Ol’ Cletus really feel that way, do you really want to eat there anyway? Is forcing him to serve those he doesn’t want to serve really going to make the world better? Is it going to improve his image of non-white folk? Is his establishment the ONLY place to get sustenance for 100 miles?
No. No to all of those. Were I [insert minority group here], and wanting to get married, and the guy running the banquet hall said, “sorry, sir, we don’t serve your kind,” I might get indignant. I might mutter under my breath as I walked away that he was a closed-minded sot, or something of the like. But I’d not then plot out how I could “get him back,” or “make him pay,” or “force him to serve me anyway.
I’d get on with my life.
And should you find yourself in that predicament, so should you.
Because wedding halls and cake are not your right.
* * *
Here is that bloggers description of Kansas, which made me smile, even if I disagreed with the rest of her piece:
I moved here in 6th grade, after years of moving around the county and world as an Army brat. At first I wasn’t excited about Kansas. I didn’t understand it. I knew as much about it as anyone else who makes the mind-numbing Wizard of Oz jokes. It was flat and boring. At a least a day’s drive to anywhere good.Years went by and Kansas was where I remained. And slowly I began to appreciate it without realizing it. The vast and rolling (yes there are hills in Kansas) landscapes began to grow on me. The people were nice and fun. And they didn’t all drive tractors and wear overalls. And when you did pass a tractor or pickup on a gravel road, you exchanged finger waves. It’s how we say “Hi”.And if you get a flat tire on one of those roads where it seems like there isn’t anyone around for miles, you can be guaranteed that within 15 minutes a nice person- a Kansan- will stop and help you out. And when I do want to get on a plane and visit the ocean, it only takes me three hours.Some may think we are in the middle of nowhere, but really we’re in the middle of everything.
Justin West runs Oram.us. He is a revert to the Catholic faith, which he lives to the best of his ability, along with his lovely wife and three (soon to be 4) children. He is also a libertarian. He does not hate gay people, nor does the church. He does believe that rights of conscience are essentially sacrosanct, and not to be trodden upon by any, even if you disagree with them. If you’re afraid you might lose your rights, you might consider protecting them.