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February 17, 2014 4:22 PM Two Steps Forward One Step Back For “Religious Liberty” Extension

By Ed Kilgore

If you heard about last week’s passage by the Republican-controlled Kansas House of Representatives of “religious liberty” legislation that seeks to exempt half the world from compliance with future LGBT rights, you may have also heard the bill’s now being buried by the Republican-controlled Kansas Senate.

But that’s not exactly the case. Republican senators are looking at a modified version of the House bill that would take out at least one inflammatory provision of the House bill—the extension of “religious liberty” rights to public employees—and perhaps others, like the implicit “right” of private employers to deny employee benefits to religiously “offensive” people.

As the Prospect’s Gabriel Arana explains, anti-gay activists are searching for a new line of defense against marriage equality now that state bans are under sustained legal attack and public opinion is rapidly shifting to favor legalized same-sex marriage.

The real area of debate, those on both sides of the issue say, is whether religiously affiliated institutions like schools or churches and for-profit, non-religiously affiliated businesses should be able to turn away gay and lesbian customers. It’s the wedding-cake scenario, where an employee at a bakery or a photographer is asked to provide services to a same-sex couple celebrating a wedding. Thus far, efforts to insert what are known as “wedding vendor exceptions” in gay-rights legislation have been unsuccessful. There’s an obvious reason for that. “They fail because those are blue states,” says William Eskridge, a professor of law at Yale University. “If the state is liberal enough to enact same-sex marriage, it’s not going to be willing to protect merchants in this way.”
As the Kansas debacle suggests, socially conservative states are inclined to pass more expansive exemptions. But legislators in other red states will likely take a lesson from the debacle and limit their scope; however, they will still be broader than those in, say, liberal Massachusetts. Just how broad depends on how quickly legislators in red states act. With each passing day—and whether or not it’s accurate to say all exemptions to gay-rights laws are driven by prejudice—public opinion shifts more and more to seeing “religious liberty” exceptions as a guise for discrimination.

Kansas remains a logical place for conservatives to draw their new law in the sand, and just because the aggressive two-steps-forward by the Kansas House are being followed by one step back doesn’t mean the battle there is over.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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