Friday, February 14, 2014

The Kansas Bill Authorizing Discrimination Against Same-Sex Couples -- What Does It Provide? Is It Constitutional?

In the name of defending religious freedom, the Kansas House recently adopted a statute that would authorize any person or business to refuse service, employment, or employment benefits to same-sex couples. Is it constitutional?


The bill is available here. The legislation is very poorly written, but it appears that the legislature intended to allow private individuals, religious organizations, and private businesses to discriminate against gay and lesbian couples by refusing to serve them or rent them accommodations, refusing to employ them, and refusing them equal employment benefits. However, the language of this portion of the bill is so tortuous that it is not at all clear when the law would apply and when it would not apply.

The law also seems to permit individual government employees to discriminate against same-sex couples, and would even permit government agencies to discriminate if it would impose an "undue hardship" on the agency to treat them equally. but this portion of the bill "piggybacks" on the previous portion, and so it suffers from the same ambiguities.

Here is the first portion of the bill relating to discrimination by private parties:
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 (c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.
At first glance it might seem that Section 1 applies only to "individuals" and "religious entities" and not to private businesses or other private organizations. Another provision of the law, however, defines "religious entity" to include private businesses:
"Religious entity" means an organization, regardless of its non-profit or for-profit status, and regardless of whether its activities are deemed wholly or partly religious, that is: (1) A religious corporation, association, educational institution or society; (2) an entity operated, supervised or controlled by, or connected with, a religious corporation, association, educational institution or society; or (3) a privately-held business operating consistently with its sincerely held religious beliefs, with regard to any activity described in Section 1. and amendments thereto.
It is an amazing, is it not, that a for-profit business can be considered a "religious entity" regardless of whether its activities are "deemed" wholly or even partly religious! But this remarkable inclusion is balanced by a surprising exclusion as well, because under the twisted wording of this definition private organizations that are not "businesses" are not eligible to be considered "religious entities." The membership of country clubs and fraternal organizations is frequently organized along religious lines and these types of organizations certainly have been known to discriminate against all sorts of persons, but because they are neither "religious associations" nor are they "privately-held businesses" under this proposed law they cannot qualify for the right to discriminate against gay and lesbian couples.

Here is the second substantive provision relating to discrimination by government employees and government agencies:
If an individual employed by a governmental entity or other non-religious entity invokes any of the protections provided by section 1, and amendments thereto, as a basis for declining to provide a lawful service that is otherwise consistent with the entity's duties or policies, the individual's employer shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer.
In other words, individual government employees may abdicate their responsibilities under the law if they have a "sincere religious belief" that they would prefer not to serve certain citizens. And the government agency itself (police? fire? emergency dispatch?) do not have to serve gay and lesbian couples if doing so would impose an "undue hardship" on the government agency. The same is true of businesses that do not qualify as "religious entities."

What exactly is it that individuals, religious organizations, and private businesses are allowed to do under Section 1 of the bill? Here, too, we find some serious ambiguity. I repeat Section 1 below with the confusing language highlighted:
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 (c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.
OoooKaaaayyy. First of all, notice that the protection extends to "sincerely held religious beliefs ... regarding sex or gender." Not sexual orientation, but "sex or gender." It is difficult to believe that this law was written to justify gender discrimination, but that is how it is written. In fact, the word "sex" is also ambiguous. Is the law speaking of "sex roles" or "sexual acts"? Is it meant to protect "sincere religious beliefs" regarding the proper roles of men and women or proper and improper modes of consensual sexual conduct?

Second, it is not clear whether the words "related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement" modifies the noun "employment benefits" or whether it also modifies "services," "accommodations," "advantages," "facilities," "goods," "privileges," "counseling," adoption," "foster care," "other social services," and "employment." If the broader application of the qualifying phrase was intended, it is difficult to understand what it means with respect to "employment." Do the authors mean to authorize businesses to refuse to employ gays and lesbians? Or gays and lesbians who are married? Or gays and lesbians who are living with someone or in a relationship?

If the qualifying phrase relates solely to "employment benefits" then the scope of the law is very broad indeed, permitting gender discrimination across the board by individuals and private businesses in terms of whom they serve and whom they employ, so long as the person or business holds a "sincere religious belief" that persons of that gender are not supposed to engage in certain conduct or have certain privileges.

Let us brush these ambiguities aside and assume that the Kansas House intended to authorize individuals, religious organizations, and private businesses to discriminate against same-sex couples, not women or gay and lesbian individuals. Is this proposed law constitutional?

One specific provision of the law is clearly constitutional. No member of the clergy can be required to "solemnize any marriage, domestic partnership, civil union or similar arrangement." To require ministers, priests, or rabbis to conduct marriages to which they objected would violate the First Amendment of the Constitution. This applies, of course, to any marriage for which there was a religious objection: to interfaith marriages, second marriages, marriages among first cousins, or any other reason for which the member of the clergy had a religious basis to object.

Similarly, no religious organization can be forced to open its doors -- its "accommodations" or "facilities" -- to host marriages that it has religious objections to. If a religious institution restricts the use of its buildings and grounds to members of its own faith, then it has a perfect right to limit access to those who are obedient to the doctrine of that congregation. (This rule does not apply to a religious institution that has decided to rent its facilities to the general public; for purposes of the Constitution, such an institution stands on the same basis as any other business that is open to the public.)

So much is required by the Constitution. Does the Constitution forbid the government from going further?

The Constitution does not apply to the acts of private individuals or organizations. The Constitution does not prohibit one person from discriminating against another, nor does it prohibit discrimination by any private group or organization. It is not unlawful under the Constitution for General Motors, for example, to discriminate on the basis of race, or gender, or disability, or sexual orientation. Acts of private discrimination are prohibited by statute, not by the Constitution. The Constitution governs the government, and it is the Equal Protection Clause that prohibits the states from intentionally discriminating against people.

In this case the Kansas legislature is considering adopting a law that would authorize private individuals and private companies to discriminate against gay and lesbian couples. Is that permissible under Equal Protection?

The principal case stating the applicable rule in this situation is Reitman v. Mulkey, 387 U.S. 369 (1967). In that case the Supreme Court considered the constitutionality of a state constitutional amendment that made it more difficult for the state legislature to enact a fair housing law. The final two sentences of that opinion expressed the holding of the Court:
The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned. (p. 381)
Accordingly, the general rule is that while the government is not obligated to outlaw private acts of discrimination, it may not encourage or involve itself in private acts of discrimination. In other words, the State of Kansas would be perfectly within its rights not to adopt any laws prohibiting discrimination against same-sex couples. (Just as it has no duty to prohibit private acts of racial discrimination.) But the State of Kansas crosses the line if it enacts a law that is intended to encourage acts of arbitrary discrimination. The constitutionality of this law turns on whether it merely acknowledges a pre-existing private right to discriminate (that exists in the absence of controlling law) or whether it actively encourages and protects such acts.

In my opinion the Kansas law constitutes active encouragement of private acts of discrimination. The law does not simply express the pre-existing right of private parties to discriminate, a right that exists in the absence of legislation; instead the law institutes a number of statutory protections for acts of discrimination. The statute erects a number of extraordinary procedural protections for persons or entities who are charged with acts of discrimination.
(1) The statute provides that "notwithstanding any other provision of law" no act of discrimination described in the law "shall result in any civil claim or cause of action" nor shall any governmental entity "withhold benefits from ... or otherwise disadvantage" any "protected individual or religious entity." In other words, all statutes and ordinances to the contrary are void.
(2) The statute provides that any individual or religious entity named in a civil or administrative action "may immediately assert the protections" of the statute, and that the action must be dismissed within 60 days, and that "the district court shall not permit any additional discovery or fact-finding prior to making its decision."
(3) If a governmental entity or an individual asserts a claim in violation of the protections afforded by the statute, then the individual or religious entity is entitled to recover "all reasonable attorney fees, costs and damages such individual or religious entity incurred" as a result of the claim. Recovery of attorney fees is not the norm; it is an extraordinary remedy. And this provision permits the recovery of other unspecified "damages" as well.
(4) Finally, the statute extends its "protection" to discriminatory acts committed by government employees. This clearly constitutes "state action." Even government agencies are protected if it would constitute an "undue hardship" for the government agency to treat same-sex couples equally.
I don't think there is any doubt but that this law constitutes intentional encouragement of acts of private and governmental discrimination in violation of the Equal Protection Clause.

What a perversion of religion. What a mockery of justice. What a shame.

1 comment:

I cheerfully concede, for the sake of argument only, my every shortcoming and limitation. In commenting please address the merits of my arguments.