When Will Social Conservatives Stop Demanding Special Rights?

Josh Barro

This week, the Kansas House of Representatives passed House Bill 2453, "An act concerning religious freedoms with respect to marriage." Despite its name, this bill isn't about religious freedom. It's about creating new special rights (yes, those dreaded special rights) for people with anti-gay views.
The bill would protect the ability of any individual, government agency, or "religious entity" (which includes a business operated in accordance with its owner's religious views) to refuse service based on sincere religious beliefs about sex or gender, and to refuse to recognize any marriage or similar arrangement for those reasons — even if such service would otherwise be required under Kansas law.
In other words, a special new right to discriminate on a particular basis.
Republicans aren't normally keen on creating special workplace rights for public employees, but this bill would let government workers refuse to do their jobs if doing so conflicted with such sincere religious views. Let's say you work for the Kansas Department for Children and Families and you don't want to process a foster care application from a same-sex couple, even though that's within the agency's policy. Or you're a police officer and you don't want to respond to a domestic abuse complaint from a same-sex couple. If this bill becomes law, that will become your right.
The bill even creates a special new employee right for anti-gay people working in the private sector. Let's say you work for a national chain supermarket with a policy against discriminating on the basis of sexual orientation, and you're asked to make a cake for a gay wedding. Now, you can refuse, and your private employer "shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer."
Social conservatives have a reason for seeking these special privileges: the America they knew is falling away from them, and that change is mostly about social attitudes, not law. Legal freedom won't be enough to protect people's ability to be loudly and proudly anti-gay; the government will have to create special rules barring private action against the anti-gay.
This bill comes from the same place as the complaints that Phil Robertson's "religious freedom" or "freedom of speech" were infringed when his comments on homosexuality were criticized. Of course, nobody was infringing on Phil Robertson's legal rights — there's no right to your own A&E show, there's no right not to be criticized for your religious views, and (so far) there's no right to refuse to do your job because you think homosexual behavior is wrong.
Maybe in Kansas, there soon will be. Whatever that is, it won't be an advance for religious freedom.