TOPEKA — Kansas lawmakers are weighing the possibility that same-sex marriage could be legal in the near future and responding with legislation designed to protect those who oppose it on religious grounds from discrimination lawsuits.
By Bryan Lowry
Eagle Topeka bureau
The intent and scope of a bill that would allow government and private employees to refuse service based on their religious beliefs about marriage was hotly contested in a House committee hearing Tuesday.
Proponents of House Bill 2453 say it is narrowly focused on wedding celebrations; florists, bakeries and other businesses would be protected against discrimination lawsuits if they refuse to serve same-sex weddings.
But opponents say its wording allows it to extend to all parts of life.
The bill says no individual, business or religious group with “sincerely held religious beliefs” could be required to provide “any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits” related to any marriage or domestic partnership.
The proposal comes in the wake of federal district court decisions in the 10th Circuit – of which Kansas is part – that overturned bans on same-sex marriage in Oklahoma and Utah. If those decisions are upheld on appeal, they could open the door for similar bans, like the one in Kansas, to also be ruled unconstitutional.
Rep. Charles Macheers, R-Shawnee, the bill’s sponsor, argued that even if the legality of same-sex marriage changes, religious opposition should still be protected in the private and public sectors.
“This is a religious freedom bill and only a religious freedom bill,” Macheers said in the hearing before the House Committee on Federal and State Affairs.
Rep. Emily Perry, D-Mission, asked whether the bill’s protection for government employees would include police officers arriving on the scene of an emergency at a same-sex couple’s home.
“Would this prevent a police officer, if he arrived on the scene of a domestic partnership, to decline to help those people?” Perry asked Macheers.
Macheers said his understanding was the bill was focused on services pertaining to weddings specifically.
However, Rep. Annie Tietze, D-Topeka, noted that adoption agencies are named in the bill as a type of service included.
Tim Schultz, the Kansas legislative policy director for the American Religious Freedom Program, contended federal law already requires employers, both private and public, to try to accommodate religious objections of their employees. He said the federal law already applies to Kansas government employees, but that the bill would mandate a similar protection at the state level.
Thomas Witt, spokesman for Equality Kansas, a lesbian, gay, bisexual and transgender rights organization, said the bill is in response to the pair of federal rulings in the 10th Circuit that overturned same-sex marriage bans in Oklahoma and Utah. Witt contended the bill is being proposed as a way to allow governmental discrimination against same-sex couples to continue even if the state’s ban is ruled unconstitutional.
“This goes beyond discrimination. This allows people to legally pretend that legal marriages do not exist,” Witt said. “This is a trigger bill that is being proposed. The Legislature knows that this court ruling is coming at some point sooner or later.”
Schultz said the law will not prevent same-sex couples from getting any government service.
“The services will still have to be provided,” he said, adding that the bill requires employers to try to accommodate employees objecting on religious grounds, unless that objection cannot be met without “undue hardship.”
“If you have an office of five clerks and all of them say I can’t do that, one of the five is going to have to. That’s the reality,” he said.
Witt said this argument ignores the realities of rural Kansas.
“People who live in small towns, there is no alternative to service,” Witt said. “We’re looking at county clerk’s offices where there’s one person, and that’s the clerk. … This bill says if you live in a rural part of Kansas, your marriage will not be recognized by the government.”
Proponents of the bill repeatedly said the bill was not designed to discriminate against same-sex couples but instead to protect Kansans against the possibility of religious discrimination.
Michael Schuttloffel, executive director of the Kansas Catholic Conference, said religious freedom extends not just to belief but includes the practice.
“The First Amendment recognizes the fundamental right of individuals not just to worship but to live their faith in their daily lives while functioning as full participants in society,” Schuttloffel said. “In America religious freedom has never meant simply the freedom to worship in private.”
He warned of lawsuits and fines that could face florists and photographers who refused to offer their services to same-sex weddings on religious grounds if no legal statute is adopted.
At one point in the hearing, Rep. Ponka-We Victors, D-Wichita, pointedly asked Schuttloffel if he had ever been discriminated against.
Schuttloffel said he had, but never to the point of a civil rights violation.
Victors, who is of America Indian ancestry, compared the bill to racial discrimination.
“I have been discriminated against just because of the color of my skin,” Victors said after the hearing. “Whether you’re going to discriminate against someone because they’re gay or because they’re Native American, discrimination is discrimination.”
The use of religion to justify the bill angered Lori Wagner, a Lawrence resident who married her wife in Iowa a year and a half ago.
“It’s like getting kicked in the stomach, and it happens repeatedly,” Wagner said.