A National Embarrassment: Kentucky Legislature Legalizes Gay Discrimination

Yesterday, Justice Sonia Sotomayor asked the lawyer representing the opponents of same-sex marriage, “Outside of the marriage context, can you think of any other rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing a burden on them…denying them a job, not granting them benefits of some sort?” The lawyer responded, “Your honor, I cannot.”

Not more than four hours later, both houses of the Kentucky Legislature overwhelmingly[i] answered the question for themselves and the people of Kentucky by claiming the right of individuals and religious institutions to do just that – to deny any person benefits or access – if those individuals and institutions simply hold that they are acting in accordance with their religious beliefs. Today, faith-based discrimination is legal in Kentucky.

The target of the legislation, of course, is gay men and women.

As of today in Kentucky, no gay man or lesbian will enjoy any protections from discriminatory action if someone claims, “I don’t serve your kind based on my religious beliefs.” As of today in Kentucky, an individual’s or a religious organization’s religious beliefs will be grounds enough to refuse access to products, services, accommodations, jobs, facilities, benefits, health care, etc. Now mind you, under current Kentucky law, it is illegal to discriminate based on a person’s disability, sex, age, religion, race or national origin. But as of today, in Kentucky, it’s okay for an individual to use religion to justify discrimination.

Under Kentucky law, no one could get away with acting as if their policy were: “Wheel-chair bound people not welcome,” “Women not welcome,” “Over 55 not welcome,” “Jews and Muslims not welcome,” “Blacks and Latinos not welcome,” “Irish, Italians and Chinese not welcome.” They would have their asses hauled into court. But hey, act, post a sign or even advertise, “we don’t serve gays,” and you’ve got no problem.

It is legislation that, unfortunately, is not even one step shy of legitimizing marginalization, not even one step shy of the practice the Germans exercised on their Jewish neighbors in the 1930s. That discrimination based on someone else’s religious beliefs has morphed into Kentucky’s version of discrimination based on someone’s own religious beliefs. In both cases, good citizens were and are affronted by state sanctioned discrimination (if not demonization). And we all know where that can lead.

This Kentucky law[ii] excuses behavior that in every other circumstance (disability, sex, age, religion, race, national origin) is considered criminal. It excuses behavior that history has demonstrated to be criminal. But it’s behavior that is now legal in Kentucky.

Justice Sotomayor: “Can you think of any rational basis, reason, for a state using sexual orientation as a factor in denying homosexuals benefits or imposing a burden on them?”

“Your honor, I cannot.”

[i] The House’s 79-15 vote sent House Bill 279 to the Senate, which voted 32-6.

[ii] Government shall not burden a person’s or religious organization’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.