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Kansas considers response to uncertainty on gay marriage

Updated: 2014-01-26T21:33:27Z

By JOHN HANNA The Associated Press

— With the legal climate uncertain for states banning gay marriage, Kansas lawmakers are considering a proposal designed to protect individuals, groups and businesses refusing for religious reasons to recognize same-sex unions or to provide benefits to gay couples.

The legislator pushing the bill says it’s designed to protect religious freedom, and Republican Gov. Sam Brownback is receptive to the idea, though he hasn’t yet studied the proposal enough to offer a formal endorsement.

Critics say the measure promotes discrimination against gays and lesbians, and is so broadly written that it could apply to any couple, gay or straight, with a less-than-traditional union.

The Kansas House’s Federal and State Affairs Committee scheduled a hearing for Tuesday morning on the measure. It’s not clear how quickly the committee might act on it.

Kansas already had a law against gay marriage when voters added a ban to the state constitution in 2005, approving it by a 70 percent margin. But federal judges recently struck down bans in Oklahoma and Utah, and Kansas state Rep. Charles Macheers, a Shawnee Republican who’s leading efforts to pass the bill, said court decisions “demonstrate that the legal landscape is in flux.”

“This bill protects religious individuals and religious entities on both sides of the issue of marriage,” Macheers said in an email response to questions about the proposal.

The bill is similar to legislation in South Dakota. Gay rights advocates are preparing for an attempt to block its passage in the GOP-dominated Kansas Legislature, and the measure has attracted the attention of the American Civil Liberties Union’s national organization.

“It really is about targeting people’s lives,” said Eunice Rho, an ACLU attorney who works with state affiliates on policy and advocacy. “We’re really keeping an eye on whether this becomes a broader trend.”

The Kansas Constitution says: “Marriage shall be constituted by one man and one woman only,” declaring all others “void.” It also says that no other relationship shall be recognized by the state as “entitling the parties to the rights or incidents of marriage.”

But Tom Witt, executive director of Equality Kansas, the state’s leading gay rights group, said the Oklahoma and Utah decisions are significant to Kansas because all three states fall under the jurisdiction of the 10th U.S. Circuit Court of Appeals in Denver. And Brownback, a social conservative, acknowledged during his most recent news conference that the legal situation is “evolving.”

Brownback said Saturday that he needs to review the legislation but said, “I think it’s something we that need to protect, our people’s religious liberties and religious rights.”

The bill declares that no individual, business or religious group with “sincerely held religious beliefs” could be required by “any governmental entity” to provide services, facilities, goods, employment or employment benefits related to any same-sex marriage or domestic partnership. The measure bars anti-discrimination lawsuits on such grounds.

The measure allows government employees to invoke the rule’s protections in providing a lawful service, though it says the agency must “promptly” provide another worker to do so “if it can be done without undue hardship on the employer.”

Witt said he can envision numerous scenarios affecting the daily lives of gay couples and their families, such as hospitals refusing visitations to partners or schools not recognizing a partner has a second parent to a child. Also, he said, the language about government employees would allow them to refuse to issue marriage licenses to gay couples even if the courts strike down the state’s same-sex marriage ban.

Rho said the ACLU believes the implications could be even broader. Companies offering benefits to legally married gay couples or domestic partners could have their policies blocked by individual employees. She said businesses could make decisions about benefits for straight couples based on whether an owner doesn’t think a marriage is traditional enough.

Witt said: “This is one of the most offensive bills I’ve seen come out of here.”

But Macheers said the scenarios suggested by the ACLU are “outlandish.” If the state has no gay marriage ban, licenses would be issued because the state would have a legal duty to do so, he said.

“This is about guaranteeing a high standard of religious freedom in a context that scholars on both sides of the marriage issue agree presents some challenges,” Macheers said of the bill.

The bill on marriage is HB 2453. Text of the gay marriage bill: http://bit.ly/1e5Z1pF . Kansas Legislature: http://www.kslegislature.org .

Follow John Hanna on Twitter at www.twitter.com/apjdhanna.

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