‘Homosexual Jim Crow Laws’? Get Real

COMMENTARY Religious Liberty

‘Homosexual Jim Crow Laws’? Get Real

Feb 19th, 2014 3 min read
Ryan T. Anderson, Ph.D.

Senior Research Fellow in American Principles and Public Policy

Ryan T. Anderson, Ph.D., researches and writes about marriage, bioethics, religious liberty and political philosophy.

“Christians backing this bill are essentially arguing for homosexual Jim Crow laws.” So asserts Kirsten Powers in today’s USA Today. What could justify such an assertion? Nothing. Powers is wrong about the law.

The bill in question is a religious-liberty protection being debated in the Kansas legislature. The bill would protect all citizens from being forced by the government into recognizing or celebrating a same-sex marriage if it ran contrary to their religious beliefs. So how is a bill protecting liberty akin to Jim Crow?

Powers isn’t alone. Slate ran a piece with the headline “ Kansas’s Anti-Gay Segregation Bill Is an Abomination.” But the Kansas bill and similar bills that protect liberty are about preventing the kind of coercion that happened under Jim Crow. They protect what should be already protected: basic civil liberties such as freedom of association, freedom of contract, and freedom of religion.

Jim Crow and segregation did the exact opposite. Those wicked regimes legally coerced people to keep them separated, to prevent them from associating or contracting. Yet today, we see liberals of various stripes saying the law should coerce people into associating and contracting.

But freedom of association and freedom of contract are two-way streets. They entail the freedom to choose whom to associate with and when and on what terms; whom to contract with and for what goods. Governmental mandates that force association or prevent association violate these freedoms.

If a central argument of the LGBT movement has been the freedom to live how one chooses sexually, shouldn’t government respect the freedom of citizens to live how they choose in the marketplace? Indeed, respecting religious liberty for all those in the marketplace is particularly important. After all, as first lady Michelle Obama put it: “Our faith journey isn’t just about showing up on Sunday for a good sermon and good music and a good meal. It’s about what we do Monday through Saturday as well.”

The state’s concern for the freedom of its citizens to live out their beliefs about marriage is not unwarranted. As Leslie Ford and I explained yesterday on NRO, in a growing number of incidents, the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance, intimidation, and even government coercion and discrimination for citizens who believe that marriage is the union of a man and a woman and that sexual relations are properly reserved for marriage.

Christian-adoption and foster-care agencies have been forced to stop providing those services because they object to placing children in same-sex households. Other cases include a photographer, a baker, a florist, a bed-and-breakfast, a t-shirt company, a student counselor, the Salvation Army, and more. In each of these instances, there were plenty of other businesses available that were willing to provide similar services.

Powers does not have sympathy for these particular business owners:

It’s probably news to most married people that their florist and caterer were celebrating their wedding union. Most people think they just hired a vendor to provide a service. It’s not clear why some Christian vendors are so confused about their role here. … Christianity doesn’t prohibit serving a gay couple getting married. … Christians serve unrepentant murderers through prison ministry. So why can’t they provide a service for a same-sex marriage?

But many of these professionals understand their professions differently – being a wedding photographer is not simply being “a vendor,” but utilizing God-given talents to tell the story of a particular couple and their relationship. Likewise, many of these professionals understand their obligation to witness to the truth differently – celebrating a same-sex relationship as a marriage affirms that relationship. It is understandable why some religious believers would not want the government coercing them into doing that. The government shouldn’t enshrine Powers’s theology into law and then coerce those who have a different understanding of what their faith requires.

The Kansas bill would prohibit the government from penalizing or taking an adverse action against individuals or employers because they declined, because of their religious beliefs, to provide a service that would compel them to recognize or affirm a same-sex relationship as marriage. The bill would also prevent employers and individuals from facing civil lawsuits for acting in accordance with their beliefs.

Contrary to what some opponents of the bill have suggested, the Kansas policy would only protect religious individuals and organizations from being forced to provide services related to marriage, the celebration of marriage, or similar relationship. It would not allow businesses, individuals, or government employees from refusing to serve someone (or a couple) simply because of his or her sexual orientation.

Kansas currently defines marriage as the union of one man and one woman in its state constitution and does not have state sexual-orientation or gender-identity laws. Still, the bill that passed by the state House last week is important and necessary to prevent future conflicts with religious liberty should a court strike down Kansas’s marriage amendment (as has happened in a number of states) or the state adopt sexual-orientation laws.

Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms. Americans are free to live and love how they choose, but they should not use government to penalize those who think and act differently. All Americans should be free to believe and act in the public square based on their beliefs about marriage as the union of a man and woman without fear of government penalty.

 - Ryan T. Anderson is a Heritage Foudation William E. Simon Fellow at the DeVos Center for Religion & Civil Society

Originally appeared in the National Review Online