Critics of Gov. Sam Brownback’s executive order on religious freedom say its wording extends to local governments – which they say oversteps his legal authority.
But the governor’s office pushed back against that interpretation Thursday, saying that it applies only to state government.
The order, which came after the U.S. Supreme Court ruled that same-sex couples have a constitutional right to marriage, prohibits state government from taking punitive action against clergy members or religious organizations that oppose such marriages.
Section 3 of the governor’s order says that “State Government means all departments, commissions, boards, agencies, and political subdivisions of the State of Kansas.”
The phrase “political subdivisions” can refer to local county and city governments and school boards.
“The governor may have authority in executive orders over state agencies and departments, commissions and boards, things that he appoints members to and certainly the executive agencies under his direct control, but he doesn’t have authority – I don’t believe – over all political subdivisions of the state of Kansas,” said Doug Bonney, chief counsel for the ACLU of Kansas.
“So I think that part of it, that definition, is too broad. It goes beyond his powers as I understand them,” Bonney said.
Brant Laue, the governor’s chief legal counsel, would not say Thursday morning whether the governor intended the order to extend to local governments.
The governor’s spokeswoman, Eileen Hawley, issued a brief statement Thursday afternoon disputing Bonney’s reading and assuring that the governor’s order does not extend to local governments.
“The Governor’s Executive Order protecting the constitutionally proscribed religious liberties of all Kansans does not apply to local units of government but only those agencies and political subdivisions over which the Governor has legal authority,” Hawley said in an e-mail.
Wichita and Sedgwick County said they were reviewing the governor’s order to determine what impact, if any, it had on them. The Kansas Association of Counties also said it was “researching the potential impact on municipalities and the scope of power for executive orders.”
If the order extends to the local level, it could conflict with anti-discrimination policies on the books in cities such as Lawrence and Topeka.
Criticism of the order
The question was first raised by Tom Witt, the executive director of Equality Kansas, a gay rights group, who has been consulting with attorneys since Brownback issued the order Tuesday.
Witt said that by including the phrase “political subdivisions” in the order, Brownback has “just declared himself the supreme ruler of every local school board, every state university, every community college, and every independent commission, hospital board, library board, township, city and county in our state.”
After Hawley issued her statement, Witt said, “The governor’s an attorney. Did he not read what he signed?”
Bonney said the order was poorly drafted.
“Any lawyer should know that (political subdivisions) that’s a broad term and it includes local governments,” Bonney said.
The order also fails to define “religious organization,” making it unclear what organizations it could be applied to, he said.
“If it really means that if a religiously affiliated social service organization, say one that operates a homeless shelter, is going to discriminate against married same-sex couples in services and that organization gets state funding and the state’s just going to sit back and say, ‘Well, OK, here’s the executive order, we can’t do anything about,’ then I think that’s a real problem,” Bonney said.
The governor’s order states that state government cannot “withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny, any state grant, contract, subcontract, cooperative agreement, or loan from or to any person” based on their sincerely held religious beliefs of marriage.
It has widely been interpreted to shield religious organizations that contract with the state to provide adoption services from being penalized for refusing to place children with gay couples.
‘Very fundamental right’
Brownback touted the order during a Wednesday appearance on a podcast produced by the conservative Family Research Council.
He said the Supreme Court ruling “sent a shudder across the faith community across America, saying wait a minute, don’t we have religious liberty protections?”
“And what this, my effort here, is to express that yes, in the state of Kansas you’re not going to see the entities of state government used against your religious liberty protections when it comes to the issue of same-sex marriage,” Brownback said.
The governor said the issue needs to be front and center in the 2016 presidential election and warned that a “very fundamental right (is) being attacked in the United States.”
Tony Perkins, the president of the Family Research Council, noted during the interview that Brownback’s order was similar to one previously issued by Louisiana Gov. Bobby Jindal, a Republican candidate for president.
Witt accused Brownback of “attempting, by dictatorial fiat, to place the rights of a few – those who have ‘sincerely held religious beliefs’ or ‘moral conviction’ – above the rights of all other Kansans.”
Joint tax returns for same-sex couples
The order comes as state agencies are updating policies to accommodate same-sex marriages.
In a filing in federal court on Thursday, attorneys for the state sought to dismiss a lawsuit against Kansas over gay marriage by arguing that state agencies were now treating same-sex couples the same as opposite-sex couples.
“Driver license applications are being handled in the same manner for all married couples whatever the gender of the parties,” the brief said. “And Kansas income tax returns filed jointly are now being accepted for all married couples.”
The Department of Revenue had not previously announced that same-sex couples could file jointly. It said earlier in the week that it was still studying the issue.
Jeannine Koranda, the agency’s spokeswoman, confirmed in an e-mail Thursday that same-sex couples would now be able to file their taxes jointly.