Anti-LGBTQ bill’s target was the Supreme Court, not tolerant Kansans
The Kansas Legislature had a brush with notoriety early in its 2019-20 session: On Feb. 13, seven members of the state House of Representatives introduced a bill designed to push back against LGBTQ rights in the name of protecting the free exercise of religion. House Bill 2320, the “Marriage and Constitution Restoration Act,” has been widely criticized, and has failed to move from the House to the Senate for consideration — two facts that have basically doomed this piece of legislation.
However, the demise of HB 2320 should not be mistaken for the demise of the particular agenda that this bill was designed to serve. In fact, Kansas is not the only state to have tried its hand at a “Constitution defense” strategy. Even the federal government has made an attempt at such a bill. This Kansas proposal is merely the latest strategy to seize upon the uncertainties of today’s legal landscape and turn those uncertainties to the advantage of same-sex marriage opponents.
It is important to recognize that the legal questions targeted by HB 2320 are not the creation of Kansas lawmakers. They are the creation of the U.S. Supreme Court itself.
To understand the Supreme Court’s role in the creation of this bill, it is important to consider the language. HB 2320 takes aim at a society that has embraced both same-sex marriage and the government’s right to refuse religious exemptions for opponents of same-sex marriage in recent years. A recent poll from my organization, the Public Religion Research Institute, shows that 60% of Americans now oppose allowing business owners to refuse service to gay or lesbian people, even if providing the service would violate their religious beliefs. (The state of Kansas, at 59%, tracks closely with this national trend, though this opposition shifted to 50% between 2017 and 2018.) The Kansas bill takes aim at this entire segment of Americans, portraying them as a threat to the separation of church and state.
The legislation makes its case by focusing on what it terms “LGBTQ ideology,” which ranges from particular sexual orientations to general allyship with LGBTQ people. This ideology is portrayed as “inseparably linked to the religion of secular humanism.” By this logic, the language of the bill says members of the LGBTQ community, and the Americans who support them, have come to function — whether they recognize it or not — as a “denominational sect” that has been afforded special favor by the U.S. government.
HB 2320 is not the first document to categorize secular humanism as a “religion” for the purposes of the First Amendment, but this bill devotes a truly remarkable amount of time to exploring the definitions of words such as “religion,” “secularism” and “establishment.” And this is precisely where the Supreme Court comes in: This bill’s definitional acrobatics are designed to capitalize upon the court’s own deep disagreements over the meaning of such words.
In a recent publication, I highlighted the way in which the Supreme Court’s 2015 Obergefell v. Hodges decision not only legalized same-sex marriage, but also revealed a significant dispute among the court’s justices over the definition of “religion,” “secularism,” and “free exercise.” In the face of this disagreement, an opportunity has arisen to try to push judges to think of the free exercise logic of same-sex marriage in ways more favorable to religious conservatives.
Though Kansas’ HB 2320 is exceedingly unlikely to become law, this bill provides valuable insight into the latest frontier in the American debate over LGBTQ rights. Growing support for LGBTQ empowerment has solidified many “traditional marriage” advocates’ self-perception as an embattled minority within an increasingly hostile society.
In such a context, passage into law was probably never the primary purpose of this legislation. It is much more likely that this bill was designed to speak to state and federal judges, rather than to the broadly LGBTQ-friendly inhabitants of Kansas.
Jenna Reinbold is an associate professor of religion at Colgate University in Hamilton, New York, and a public fellow with the 501(c)(3) nonprofit Public Religion Research Institute.
This story was originally published April 30, 2019 at 8:31 PM.