February 13, 2014
This is interesting. It appears at least five states have taken steps toward passing what are being called “Turn the Gays Away” laws. Bills have recently been introduced in Tennessee, South Dakota, and Idaho. A senate panel has approved a bill in Arizona. And the Kansas House has already passed its version of the law.
Essentially, these laws are a response by religious conservatives to what they perceive as the excessive advancement of the gay rights movement. In most cases, these laws make it permissible (on “religious freedom” grounds) for a person or business to refuse to sell goods or offer services that would contribute to or support a same-sex marriage. For example, a cake-making business could refuse to sell a wedding cake to a gay couple; a caterer could refuse services for a same-sex wedding reception. Perhaps a hotel could refuse to host wedding guests? Maybe travel agents could refuse to book honeymoons? (Ok, maybe that last one doesn’t matter—who uses travel agents anymore?)
But what about grocery stores? Can they refuse to sell groceries to same-sex couples, because it would “support” their marriage? In fact, some of these laws don’t seem to be limited only to marriage-related goods and services—they seem to provide a basis for “turning gays away” altogether, because they’re gay. The Idaho bill focuses on licensed professionals, and seems to suggest that a doctor, for example, could categorically refuse to treat homosexuals without fear of losing his medical license. (Does this mean he’s allowed to put a question about sexual orientation on his patient intake form, to screen out the undesirables?)
Aside from the simple business and economic implications of these laws and practices (you’re turning away customers!), the constitutional implications are fascinating. In short, these laws pick up the free-exercise theme from the “contraception mandate” litigation and push it further, setting up a constitutional showdown between the First Amendment’s right to free exercise of religion and the Fourteenth Amendment’s right to equal protection under the law.
When one person’s right to exercise their religious beliefs comes into conflict with another person’s right to be treated equally, which right wins?