Anti-Gay Jim Crow Comes to Kansas

A new Kansas proposal would legalize discrimination against gay couples in the state, echoing one of the ugliest parts of American history.

On Wednesday, the Kansas House of Representatives took a step back to the 1890s with a shameful bill that borrows from Jim Crow to legalize discrimination against gay couples. Approved by a vote of 72 to 49, House Bill No. 2453 would allow businesses and government employees to deny service to same-sex couples on the basis of their religious beliefs. The law specifies businesses with “public accommodations,” but—in effect—that covers almost everything.

What does this mean in the real world? If you and your partner want to go buy groceries, but the owner—or manager—doesn’t “agree” with your relationship, they can refuse you service. If you want to go the movies, and the owner decides she’s uncomfortable—she can kick you out. Hotels can deny entry, gyms can deny access, and restaurants can eject you without consequence.

Obviously, some gay couples will want to sue. But under the law, anyone who turns away a gay couple is immune to a civil suit. What’s more, the couple will have to pay their opponents attorney’s fees.

On top of all of this, the bill authorizes anti-gay discrimination by anyone who works for the state of Kansas. Ambulances can refuse to come to the home of a gay couple, park managers can deny them entry, state hospitals can turn them away, and public welfare agencies can decline to work with them. Yes, the bill requires private managers and state employees to refer the couple to another person who will conduct their business, but in reality, those rules have a habit of falling by the wayside.

And while the bill is presented as a measure directed explicitly at same-sex couples, the language is much more ambiguous. One clause allows discrimination as long as the transaction is “related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.”

There’s no way to know if a given transaction is related to a gay partnership. In most cases, there’s no way to know if someone is gay. But that doesn’t matter. Under this bill, if you believe someone is gay and purchasing something or making arrangements for the sake of a civil union or same-sex marriage, you can deny them service. Indeed, they don’t even have to be gay. Anyone suspected of working towards those ends could be subject to legalized harassment.

To put this simply, the Kansas House has just endorsed a comprehensive system of anti-gay discrimination. If it becomes law—which isn’t unlikely, given Republican control of the statehouse and governorship—it will yield a segregated world for gays and their allies, as they are forced to use businesses and other services that aren’t hostile to them.

When asked about the bill, Kansas Governor Sam Brownback told The Topeka Capital-Journal that “Americans have constitutional rights, among them the right to exercise their religious beliefs and the right for every human life to be treated with respect and dignity.” The question is whether he thinks this applies to gays.

Looking at this bill, I don’t think it’s an exaggeration to call it a close cousin—if not sibling—of Jim Crow (natch, for black gays and lesbians in the state, there’s little difference). Like its Southern predecessors, this proposal is meant to isolate and stigmatize a despised minority, under of the guise of some higher priority (“religious liberty”). And while this bill doesn’t sanction violence, that was also true of Jim Crow. During the period, African Americans had legal equality under criminal law. In theory, if you beat a black person, you could be arrested and tried for assault. In practice, however, this rarely happened. Legal stigmatization fed social stigmatization (and vice versa) which led to a world where blacks were all but outside the protection of law.

Obviously, we are far from that in Kansas. But one thing is true: Wherever legal stigma of minorities is in place—separation, segregation, etc.—violence isn’t far behind. A Kansas that enshrines discrimination against gays is, implicitly, a Kansas that has declared its contempt for their lives.