Senate leadership torpedoed a controversial House bill that would have allowed private and public employees to refuse service based on religious views of marriage, leaving House Republicans scrambling Friday.
House Speaker Ray Merrick, R-Stilwell, said the current bill probably would not pass the House again if put to another vote. It cleared the House 72-49 on Wednesday, triggering national attention and a flood of protest calls to lawmakers.
If House Bill 2453 is considered by the Senate, it will look dramatically different, Senate leaders said Friday.
For starters, the provision allowing government employees to refuse service is out.
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“I believe that when you hire police officers or a fireman that they have no choice in who they serve. They serve anyone who’s vulnerable, any age, any race, any sexual orientation,” said Senate President Susan Wagle, R-Wichita.
Asked if that held true for a government employee who issues dog licenses, Wagle responded, “Public service needs to remain public service for the entire public.”
Concerns from the business community also contributed to the hesitation to move forward with the bill in its current form, said Wagle, who was joined at a news conference Friday morning by Senate Vice President Jeff King, R-Independence, and Senate Majority Leader Terry Bruce, R-Hutchinson.
The bill, as written, would hurt large and small businesses, she said.
“It actually overturns our current laws that represent at-will employment, in that an employer can hire and fire any individual for any reason. The business community is just tremendously concerned about how this will affect the employer-employee relationship,” Wagle said.
She cited the bill’s stipulation that if an employee refuses service to a same-sex couple, the employer must provide another employee to perform the service. She said that would increase the cost of doing business.
She noted that Kansas businesses are prevented by law from asking about a prospective employee’s religious beliefs, and so an employer would have no way of knowing if a job candidate would refuse service to same-sex couples.
Several Senate Republicans approached Wagle on Thursday to voice concerns about the bill, her spokeswoman confirmed. She issued a statement Thursday night saying a majority of Republican senators would not support the bill in its current form.
Proponents have repeatedly said the bill applies only to services related to the wedding ceremony. But critics, such as the Kansas Bar Association and ACLU, have said the bill’s wording allows it to have a much broader impact.
Friday afternoon, House Republicans who voted for the bill attempted to do damage control.
Merrick took responsibility for moving the legislation forward.
“The buck stops here. I decide what legislation is heard on the House floor. That’s part of this job. When this came forward, I saw it was ready to go,” he said.
But he also said the bill was open to interpretation.
“I’m not a lawyer. And as we all know you can get 15 lawyers in the room and you’re going to have 15 different opinions on what things are. When I read the bill, I didn’t see all the bogeymen in it like everybody else is seeing,” Merrick said.
The Kansas Chamber of Commerce issued a statement saying the bill posed legal problems for the business community. Merrick said he had not heard from the chamber before the House vote.
Chamber President Mike O’Neal, a former speaker of the House, said the chamber had not been active on the bill before the House vote, in part because of informal assurances that the bill would primarily affect government entities.
But after the bill passed the House, several companies’ legal departments and human resources departments raised serious concerns, he said.
O’Neal said several passages in the bill were not clearly defined, and that the impact could be potentially damaging to businesses required to comply with new policies.
“We obviously know that courts in interpreting this aren’t going to necessarily be satisfied with intent. They’re going to interpret a statute strictly,” O’Neal said. “If there is question about that, this is the time and opportunity before it becomes law to make sure that those concerns are addressed.”
O’Neal also said that a law that gives employees permission to refuse service to paying customers could potentially hurt a business’ image and profits.
Saving the bill?
Merrick promised to reach a consensus with the Senate on a version of the bill that addresses these and other concerns. He said the Senate’s plans to make adjustments to the bill showed the legislative system is working.
King said if the Judiciary Committee considers the bill, it will consult legal experts and Kansans from varying beliefs to arrive at legislation that is narrower and clearer in focus.
“We just have to make sure when we dig in our heels to fight for religious liberty that we do so for all Kansans and that we do so in a way that doesn’t discriminate against anybody,” King said.
The legislation is the result of an ongoing conversation by Rep. Lance Kinzer, R-Olathe, and Tim Schultz, state legislative policy director at the American Religious Freedom Program in Washington, over the possibility that federal courts could overturn the state’s ban on same-sex marriage.
Kinzer said that he would be fine omitting the section regarding government employees. He said federal law already offers religious protections.
Schultz, a native Kansan who works in Washington, said the language probably needed to be tweaked to make the intent clear.
Thomas Witt, spokesman for Equality Kansas, an LGBT advocacy group, he looks forward to working with the committee to craft a compromise version of the bill if that is possible
“The religious community needs to have their religious freedoms respected, but the gay community needs have our rights as citizens of the state of Kansas respected,” Witt said. “We’re not going to support any bill that singles out gay or lesbian couples either directly or indirectly through legalese.”
Senate Minority Leader Anthony Hensley, D-Topeka, doesn’t think the bill can be salvaged in any form.
“I don’t see how there could be any compromise on this issue. I think it’s pretty clear that the House Republicans who voted for this bill wanted to legalize discrimination,” Hensley said.
“That’s a value that most Kansans don’t share. It’s a very radical notion and I commend Sen. Wagle for basically announcing this bill is DOA,” he added.
The concerns of Senate leadership would seem to suggest that House Republicans failed to consider the full ramifications of the bill.
Wagle would not say that explicitly. She said House members had good intentions.
Rep. Steve Brunk, R-Wichita, chair of the Federal and State Affairs Committee, which initially passed the bill, said his committee had thoroughly considered the issues at stake.
“We had two days of hearings. That’s two full days of hearings. Anybody in the state, anybody on the planet, can come here, attend hearings and offer any amendment they want,” Brunk said. “The committee considered all of the amendments, so I can’t speak for the Senate leadership but there aren’t any gaps in the bill.”
Rep. Emily Perry, D-Mission, a committee member who opposed the bill at the initial hearings, said she thought some of her House colleagues did fail to consider all of the aspects of the bill.
House Republicans treaded carefully on Friday. Rep. John Rubin, R-Shawnee, said he would vote for the bill again based on his beliefs on religious liberty, but he said it was unnecessary since the U.S. and state constitutions already offer religious protections. “It’s a bit redundant,” he said.
“In other words, I think this whole trip was unnecessary, and I question really why the bill even came to the floor for a vote,” Rubin said.