Kansas’ odious bill legalizing homophobic discrimination may have died a surprising death last Thursday, but the threat of anti-gay segregation is far from over. This month, Idaho lawmakers will consider two bills that go even further than Kansas’ in writing homophobia into every aspect of state law. The bills have already passed out of committee—unanimously—and barring another Kansas-style retreat, they stand good chance of passing the strongly Republican Idaho Legislature. If they do, the state will instantly become the new face of segregation in America.
Mark Joseph Stern is a Slate contributor. He writes about science, the law, and LGBTQ issues.
The first of Idaho’s anti-gay bills is a close copy of Kansas’. Under the guise of “free exercise of religion,” any private employer or business may refuse service to gay people—not just gay couples, but any individual whom a business owner suspects to be gay. As in Kansas’ bill, the law applies to both private employers and government workers. A restaurant, a hotel, or a movie theater will be permitted to turn away gay people—or perhaps simply put out a sign stating “No Gays Allowed”—as will a DMV, a county clerk, or a police station. Individuals need only state that serving gays violates their “sincerely held religious beliefs,” and they will be exempt from any lawsuits. And, as in Kansas’ bill, a gay person who does bring suit will not only lose but be forced to pay his opponent’s attorney fees.
But the second proposed bill goes much, much further than that. First, it outlaws any ENDA-style LGBT protections in the state of Idaho, which might seem superfluous since Idaho provides absolutely no anti-discrimination protections for gay people on the state level. But several municipalities have passed LGBT anti-discrimination statutes—and this, it seems, is too much for Republicans in the statehouse. The new bill explicitly revokes any municipal LGBT anti-discrimination statutes by allowing individuals with “sincerely held religious beliefs” to simply ignore them with impunity. A city ordinance banning housing or employment discrimination for gays, the bill holds, would be void, for it would “burden a person’s exercise of religion.”
Then comes the second bill’s sledgehammer, the section that could bring Idaho deep into a realm of discrimination not seen in the United States since the darkest days of racial segregation. Again in the name of “free exercise of religion,” the bill forbids any “occupational licensing board or government subdivision” to “deny, revoke or suspend a person’s professional or occupational license” for denying service to gay people.
This measure might seem mild on its face, but its true scope is absolutely jaw-dropping. Under the bill, a doctor may refuse to treat gay people and be protected from losing his license—even if the American Medical Association requires nondiscriminatory treatment. (The bill’s language is so broad, in fact, that a doctor could also legally deny treatment to single mothers.) A schoolteacher or college professor can openly order gays out of her classroom—even if her school has a policy of equality. Banks and law firms will be forbidden from requiring LGBT inclusiveness. The bills meddle with basic principles of free association, ripping from private organizations the ability to write their own rules. Under the proposed law, not a single group in the state of Idaho will be permitted to require the equal treatment of gays.
This dystopia is two votes and a governor’s signature away from becoming law. Each vote will be decided by a Republican majority, and the Idaho governor is a well-established hard-core conservative. Barring an unexpected reversal, the bills look to be on a fast track to success. If they do pass, they’ll be in the hands of the judiciary, where they might be slain by Windsor. (In fact, the second bill bears a startling resemblance to the law struck down in Romer v. Evans.) But the fate of these laws remains far from certain. By disguising their animus in the garb of religious liberty, the bills present themselves as common-sense religious protections. The reality, of course, is the exact opposite. These bills represent hate in its most undiluted form. And if Idaho legislators allow them to become law, they will mark their state as the frontier of the new Jim Crow.
Update Feb. 19, 12:45 p.m.: The bills’ sponsor, Republican State Rep. Lynn Luker, has announced that he will withdraw the proposals for now, stating that they have been misconstrued as a “sword for discrimination.” Luker reserved the option to revive the bills in future legislative sessions, however.