After a religious freedom bill in the Kansas House inspired national outrage, Senate Republicans face a tricky puzzle in the second half of the legislative session: How can they address concerns of religious conservatives seeking greater legal protections without setting off another explosion of controversy?
Senate Vice President Jeff King, R-Independence, said Tuesday that he does not intend to draft religious freedom legislation this session.
But if the debate continues, he wants to make sure people are informed about religious protections already on the books in Kansas.
A hearing Thursday on religious freedom by the Senate Judiciary Committee, chaired by King, won’t focus on House Bill 2453, which Senate leaders halted after it was criticized as too broad and as discriminatory toward gay and lesbian couples.
Instead the hearing will focus on House Bill 2203, a religious freedom bill that passed the Legislature and was signed into law last year without generating the same level of controversy.
Unless lawmakers understand the state’s current protections for religious freedom, they won’t know whether the state needs to go further, King said. “The answer might be that we don’t need to go anywhere,” he said.
King has repeatedly said he will enter the hearing without preconceptions. “I want to hear from all sides on this,” he said in a phone call.
Sen. Mary Pilcher-Cook, R-Shawnee, one of the most conservative members on the committee, echoed this sentiment.
“I want to listen to all concerns from all the interested parties,” she said in a phone call.
The hearing will feature testimony from legal experts, faith leaders and LGBT rights activists. King said he wants to form a consensus on the issue, as the Legislature did in 2013. But going into the hearing, religious conservatives and LGBT rights groups have made comments that suggest a compromise will be difficult to achieve.
The 2013 law states: “Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person … is in furtherance of a compelling governmental interest.”
This means religious protection is guaranteed unless government can prove why it needs to intervene. For example, if a religion’s tenets called for animal sacrifice, the state could argue its laws against animal cruelty were a “compelling government interest.”
King said the focus of the hearings will clarify extent of the state’s religious protections and whether there are any gaps.
Michael Schuttloffel, executive director of the Kansas Catholic Conference, said the 2013 law does have gaps because it was based on a model that does not consider the possibility of a court overturning the state’s same-sex marriage ban.
He said that when states pass legislation legalizing same-sex marriage, protections for clergy and religious institutions are typically included.
“That does not happen when a court strikes down a marriage law and imposes same-sex marriage, as would be the likelihood in Kansas,” Schuttloffel said in a phone call.
His organization wants those protections for clergy and churches codified before a federal court overturns the state’s same-sex marriage ban, as was done in Oklahoma, Utah and other states.
But the Catholic Conference also wants protections for non-clergy. HB 2453 would have shielded business owners, private employees and government employees who declined to serve couples on religious grounds, provisions which were opposed by gay rights activists as discriminatory.
Kansas Act Against Discrimination
Equality Kansas, the LGBT rights organization that spearheaded opposition efforts against HB 2453, took a neutral stance on the 2013 bill. Thomas Witt, the group’s spokesman, said that bill did not specifically target the gay community.
Witt said Equality Kansas hopes this hearing will present an opportunity to show that preventing discrimination against the LGBT community should be a compelling government interest.
He said that sexual orientation is not protected in the state’s anti-discrimination statutes, which prohibit discrimination based on race, religion, gender and other reasons.
“What I want to see come out of these hearings is an understanding of discrimination that the LGBT community faces and the fact that we are not included in the Kansas Act Against Discrimination,” Witt said last week.
This means Kansans can still be fired, evicted or refused service based upon their sexual orientation, he said.
Witt said his organization is fine with seeing religious protections made more explicit and strengthened as long as they do not infringe upon LGBT rights. But he also said religious freedom proponents, many of whom have repeatedly said they do not want to discriminate against the gay community, should also support having protections for sexual orientation codified.
“I’d like to see some clarification for both sides,” Witt said. “They say they don’t want to see discrimination, I say let’s put it in the statute books.”
That compromise might be difficult to achieve.
Craig Gabel, president of Kansans For Liberty, a conservative group based in Wichita that has called on the Senate to take up HB 2453, objected to the idea of legal protections for the LGBT community.
“If we’re going to start providing lifestyle protections, then are we going to start providing protections so that nudists can go shop in the grocery store without putting clothes on? The list is endless if we’re going to start doing things like that,” Gabel said in a phone call.
For his part, King was hesitant to weigh in on whether these hearings presented an opportunity to draft protections based on sexual orientation. “That’s really a different issue,” he said.
Schuttloffel said legal protections for the LGBT community could potentially conflict with religious protections.
Schuttloffel said there is a difference between a restaurant hypothetically refusing to serve a gay customer because of his sexual orientation and a florist refusing to provide flowers to a same-sex wedding, which was the cause for a lawsuit in Washington state.
“There’s a huge difference,” Schuttloffel said.
“From our perspective, refusing to sell someone a bouquet of flowers just because they’re gay would be immoral,” he said. “But by the same token, a same-sex wedding is not morally acceptable from our religious tradition standpoint. And if someone doesn’t want to be forced to actually participate in that, be a part of that, condone that, help support that, that’s the difference.”