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Kansas Senate leaders won’t pass religious freedom legislation this year

  • Eagle Topeka bureau
  • Published Thursday, March 6, 2014, at 10:03 a.m.
  • Updated Thursday, March 13, 2014, at 10:41 a.m.

— Kansas already has strong religious freedom protections and the Senate does not intend to add to those protections this year, a Senate leader said Thursday.

After a marathon committee hearing on religious freedom, Senate Vice President Jeff King, R-Independence, made it clear he would not consider new legislation this session.

“One thing we heard very clearly is that through House Bill 2203 that passed last session, Kansas has some of the, if not the strongest, religious freedom restoration acts in the entire country,” he said on the Senate floor later. “Our religious protections are strong. They’re robust. They go much further than the federal protections.”

Backers of stronger protections voiced disappointment about that decision.

“We believe it’s an important issue for Kansans. It’s frustrating that we he hit a roadblock here in the Senate Judiciary Committee,” said Robert Noland of the Kansas Family Policy Council. He said his organization would lead grassroots efforts to encourage the Legislature to deal with the issue.

During the hearing, the Senate Judiciary Committee reviewed protections already provided by House Bill 2203 and other state and federal laws. Several legal experts said Kansas law already provides sufficient protection to shield business owners who object to same-sex marriage on religious grounds from lawsuits.

But committee members also heard from other lawyers who contended there are gaps and advised the Legislature to take pro-active steps to protect Kansans based on religion. Meanwhile, LGBT rights supporters said any additional religious protections need to be joined by similar protections for sexual orientation, which is not covered by Kansas anti-discrimination laws.

Senate President Susan Wagle, R-Wichita attended the hearing and said she agreed with King’s plan to close the matter for the time being.

“This is something that strikes all of our hearts and all of our minds as something we deeply care about protecting and that’s why I’m here,” Wagle said.

Last month, Wagle halted House Bill 2453, saying it was too broad and discriminatory. The bill would have enabled public and private employees to refuse service to same-sex couples on religious grounds in the event that federal courts overturn the state’s same-sex marriage ban.

She said Thursday that there would be no way to fix that bill.

“This is something where every word has to be right. It needs to be very carefully approached,” Wagle said.

At least two members of the committee showed concern about potential gaps in the state’s religious protections.

Sen. Forrest Knox, R-Altoona, raised concerns about Catholic Charities shutting down its adoption services in Illinois, which the organization chose to do rather than comply with a state policy that would have required that it serve same-sex couples.

Sen. Mary Pilcher-Cook, R-Shawnee, raised concerns about a lawsuit in New Mexico against photographers who refused services to same-sex weddings.

Mark Scarberry, a professor at Pepperdine University School of Law in California, who participated by phone, assured the committee that Kansas provided strong protections to religious individuals and institutions with the passage of HB 2203 last year. That bill guarantees religious protection unless government can prove why it needs to intervene.

“I think it’s quite strong and you really covered the deal last year in enacting that bill,” Scarberry said. HB 2453, on the other hand, would have been vulnerable to a constitutional challenge, he said.

Thomas Witt, spokesman for Equality Kansas, testified that the discussion of religious freedom in Kansas is inextricably linked to the issue of LGBT rights. He called on legislators to review the Kansas Act Against Discrimination and to consider adding specific protections for sexual orientation.

Doug Bonney, the chief counsel for the ACLU in Kansas who has represented plaintiffs in religious expression cases, said religious freedom should be a shield rather than a sword to be used against the LGBT community.

Sen. David Haley, D-Topeka, an attorney and ranking minority member, said he would support specific legal protections for the LGBT community but he could not speak for the rest of his party.

Senate Majority Leader Terry Bruce, R-Hutchinson, asked Scarberry about whether legal protections for the LGBT community would conflict with religious freedom protections.

Scarberry said that in most states where such protections had been enacted there have been tensions, but he said it would be possible to conceivably pass a bill that balanced both interests.

Bruce noted that the concerns about gaps in the state’s religious protections were in many ways speculative, as the state’s marriage amendment still stands.

But proponents, who came with their own legal experts, urged legislators to take action now and enact stronger protections before federal courts make a ruling.

The media has wrongly painted religious protections as an affront to gay rights, said Helen Alvare, a professor at George Mason Law School who has also served as an adviser to the U.S. Conference of Catholic Bishops.

Alvare, who came to the hearing at the request of the Kansas Catholic Conference, said heterosexual marriage is a central tenet in Judeo-Christian theology and that it is impossible to ask a religious person to ignore that belief at the workplace.

“From a religious freedom perspective it’s like abortion because it’s a very freshly announced right which contradicts thousands of years of secular and religious norms,” Alvare said. “This puts religious believers in a terrible position.”

Reach Bryan Lowry at 785-296-3006 or blowry@wichitaeagle.com. Follow him on Twitter: @BryanLowry3.

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