Guest Column: Religious liberty or discrimination in Kansas?

Joel Mathis and Ben Boychuk

The Kansas legislature last week found itself on the verge of passing a bill that would protect any worker — in a private business or in government — who refused service to individuals because of the worker’s religious opposition to gay marriage.

The bill’s backers said it protected religious freedom, while opponents said it enshrined discrimination in state law. After an outcry, legislative leaders halted the bill and promised to retool it in more palatable fashion.

Where is the line between religious liberty and discrimination? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, debate the issue.

Joel Mathis

The first thing you should know is that most Kansans hate Fred Phelps, the notorious anti-gay preacher whose church has spent the last few decades obnoxiously protesting at the funerals of soldiers, politicians and other innocents in order to spread his homophobic views as widely as possible.

The second thing you should know is this: If a “religious freedom” bill passes the Kansas legislature in any form similar to the one that nearly won approval last week — well, Kansas will be tied more tightly, and perhaps permanently, to the Phelps legacy than ever before. You don’t have to shout, “God hates fags” at the top of your lungs to put Phelps’ philosophy into action.

The third thing you should know is this: The only reason the bill exists is hysteria.

It sends a signal, loud and clear, to Kansans and the rest of the world, that there is one group — and one group only — that the state gives explicit permission to discriminate against: Gay and lesbian Kansans.

That’s a breathtaking achievement. And it is wrong.

The original bill even exempted government workers from serving, if they objected on religious principles. Can you imagine a police officer refusing to help a gay crime victim? A firefighter refusing to fight a fire at a gay-owned business or house?

There’s a reason Kansas’ conservative legislators are attempting to push a bill that makes second-class citizens out of the state’s gays and lesbians: They know they are losing the cultural battle. More than ever, they’re demonstrating why they should lose. But at least they’re making Fred Phelps proud.

Ben Boychuk

The question in Kansas and anywhere else good people are trying to make sense of a rapidly changing social landscape boils down to one thing: coercion.

Will the state force a florist, a caterer, a photographer, or a baker — to name only a handful — to provide goods and services to anyone, contrary to their own consciences and religious beliefs? Kansas legislators are attempting to answer that question in the negative, and they’re right to do so.

Some ill-informed commentators have compared what’s happening in Kansas to the old Jim Crow laws that marred the South for much of the 20th century before the Civil Rights Act of 1964. They forget that Jim Crow forced businesses to discriminate and segregate by race.

The Kansas bill, by contrast, would do nothing more than free private citizens from legal consequences if they choose not to do business associated with same-sex marriage.

Compulsion versus choice: see the difference?

It would be a different story if you could only choose from one baker or one photographer in your state, rather than simply take your business elsewhere.

And if the government only provided the bakers or photographers, we wouldn’t be having this argument. As it happens, one version of the Kansas bill unwisely included government employees under its protections. Government should never discriminate.

In all likelihood, however, the Kansas bill will come to nothing. When the U.S. Supreme Court last year ruled on the gay marriage cases, I wrote in this space: “If the law says there can be no ‘rational basis’ for treating the union between a man and a woman as something unique … then it really doesn’t matter what your conscience tells you.”

Kansas lawmakers are fighting a valiant but doomed effort to preserve a shred of liberty rightly understood — liberty of conscience, liberty of contract, liberty of property, liberty of association. The courts and the culture have shifted. We have very few of those old liberties left. But, oh goodness, do we have coercion galore.

Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Joel Mathis is associate editor for Philadelphia Magazine. They wrote this for McClatchy-Tribune.