Legislatures in both Kansas and South Dakota are considering bills that would allow public accommodations to discriminate against gay couples in the event that marriage equality comes to those states.

State Rep. Charles Macheers - Kansas
Rep. Charles

In Kansas Republican Republican State Rep. Charles Macheers, who’s leading efforts to pass the bill, said court decisions “demonstrate that the legal landscape is in flux.” Which translates to his fear that same-sex marriage will become legal. According to Macheers, “This bill protects religious individuals and religious entities on both sides of the issue of marriage.” It begs the question of why anyone needs “protection” from marriage. Moreover, where are these proponents of marriage equality who have a religious objection? What is this guy talking about?

Macheers’ bill declares that no individual, business or religious group with “sincerely held religious beliefs” could be required by “any governmental entity” to provide services, facilities, goods, employment or employment benefits related to any same-sex marriage or domestic partnership. The measure would effectively bar anti-discrimination complaints and legal actions

State Senator Ernie Otten - SD
Sen. Ernie Otten

Similarly, in South Dakota, Republican State Sen. Ernie Otten proposed the bill
because courts could overturn the same-sex marriage ban as they have in other states.
According to Otten, lawsuits in some states have threatened businesses that refused to
provide wedding cakes, flowers or other services for same-sex
ceremonies. Otten, like many other anti-gay bigots professes that he does not want to hurt gay people who he separates from gay activists. “It’s unconscionable” he says “that somebody from the outside would come in and
bring a family business to ruin over activism.” Otten is wrong on the facts. Businesses are looking to make cases at the urging of Christian law firms like ADF whose attorneys are very much “outsiders.” What is “unconscionable” is to facilitate such gross discrimination.

Otten’s bill would prevent clergy or businesses from being forced to
perform or supply goods or services to anything related to same-sex
marriages. It would permit a business to refuse to host a
reception for a same-sex couple legally married in another state. Of course clergy need no such protections. It’s an added bit of demagoguery.

“We don’t serve your kind here.”

In both of these states there is reliance on numerous myths about the purposes for, and the obligations of, public accommodations:

  • As a matter of public policy we have clearly defined what constitutes a public accommodation. The Civil Rights Act of 1964 relies upon that irrefutable understanding.
  • Customers neither seek nor require the approval of merchants. Public accommodations are obligated to serve all customers. These politicians are trying to subvert the very purpose of non-discrimination laws.
  • Religious liberty is clearly defined in the First Amendment to the United State Constitution. It is understood to mean what people do in their homes and their houses of worship. Indeed, there is no such thing as a “Christian business.” There are businesses that happen to be owned or run by Christians.
  • A business license is a privilege — not a right. Public accommodations cannot succeed without a considerable amount of infrastructure provided by the state. That infrastructure is paid for by all citizens, not just conservative Christians.
  • Such laws insult the Establishment Clause contained in the First Amendment.
  • The United States Supreme Court has already weighed in on this issue. Writing the majority opinion in Employment Division v Smith, Justice Scalia (of all people) makes it perfectly clear that religious exemptions make otherwise valid laws entirely unenforceable. 

Finally, there is a certain degree of self-importance and pettiness about all of this. Making a venue available for a wedding is not exactly doing God’s work. Neither is smearing icing on a cake nor arranging flowers. If these people had responsible ministers they would be told that none of this has anything to do with personal religious observance. Nobody is forcing anyone to marry someone of the same sex. This is just sheer bigotry and ignorance per se.

By the way, who’s next? Who else might these same people disapprove of? Fairness and equality are at the very core of American culture and society. Do we really want to start chipping away at something that important?

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.