Gov. Sam Brownback issued an executive order Tuesday prohibiting state government from taking action against clergy members or religious organizations that deny services to couples based on religious beliefs.
Among other things, the order is intended to protect religious organizations that provide adoption services for the state from having to place children with gay couples if that conflicts with their beliefs.
“We have a duty to govern and to govern in accordance with the Constitution as it has been determined by the Supreme Court decision,” Brownback said in a statement. “We also recognize that religious liberty is at the heart of who we are as Kansans and Americans, and should be protected.”
The U.S. Supreme Court ruled in June that same-sex couples have a constitutional right to marriage. The governor’s order came the same day that state workers were told their same-sex spouses could be added to their health plans.
Brownback said the order protects “Kansas clergy and religious organizations from being forced to participate in activities that violate their sincerely and deeply held beliefs.”
The order explicitly protects religious organizations that provide “social services or charitable services,” meaning that it extends beyond the wedding ceremony.
The order means “a homeless shelter that received a state contract or grant could refuse family housing to a gay couple with a child, or a foster care agency could refuse to place a child in their custody with the child’s family member just because the family member was in a same-sex relationship – and the state could not require them to treat all families equally,” said Micah Kubic, executive director of the Kansas chapter of the ACLU.
Executive orders carry the weight of law. Unlike pieces of signed legislation, they can be rescinded by subsequent administrations. The governor issued an executive order earlier this year that eliminated a protection against discrimination for gay state workers that had been established by Democratic Gov. Kathleen Sebelius.
Attorneys said it was difficult to know the full impact of the governor’s order just yet.
“Any organization that contracts with the state that says their religious beliefs don’t allow them to do something, then they don’t have to do it,” said Ron Nelson, a family law expert from Lenexa. He noted it could be used by religious-based adoption services to refuse to place a child with a gay couple.
Nelson compared this to the strategies used by southern states in the 1950s and 1960s to resist desegregation.
“This is the same technique that southern states tried to use to frustrate Brown v. Board of Education,” he said.
Kerry Wilks, a Wichita resident who is a plaintiff in the federal suit that led to the state’s same-sex marriage ban being struck down, was born and raised in Alabama. She said the move reminded her of that state’s resistance to Civil Rights under segregationist Gov. George Wallace in the 1960s.
“I remember meeting Gov. Wallace and I can remember trying to put that face with the ugliness of the newsreels clips that I’ve seen and the National Guard coming in,” Wilks said. “I hope that’s not where we’re headed.”
The state’s Catholic bishops applauded the order in a statement that highlighted the closure of Catholic adoption services in Massachusetts and Illinois in recent years after Catholic Charities refused to comply with those state’s anti-discrimination laws.
“In America, religious freedom has not just meant the right to hold a religious ceremony in a private setting, confined to the four walls of a church,” the statement said. “In this country, religious freedom has meant the right to live one’s faith in one’s daily life, at home and at work, in private and in public… Kansans who believe that every child deserves a mother and a father should not be punished by the government for that belief.”
Pastors planning bigger push
Tom Witt, executive director of Equality Kansas, a gay rights organization, said it was no coincidence that the order came the same day that same-sex spouses of state workers gained access to their spouses’ health plans.
“The governor clearly has no respect for gay and lesbian Kansans and this is his way of saying that,” Witt said. “Instead of welcoming us to first-class citizenship along with everyone else in this state he sends out this executive order that basically says, too bad.”
Terry Fox, a Wichita pastor who opposes same-sex marriage, said it was “very, very encouraging that on the day that some other news was breaking that Gov. Brownback is attempting to bring religious protection to some of the people of Kansas and certainly the conservative Christian people of Kansas.”
Fox said that he had received word from the governor’s office to expect the order. He said he thinks more steps are needed.
Fox said that he met with 60 pastors in Wichita on Tuesday and that they plan to push for additional religious freedom protections.
“There is a great passion here that we need some religious freedom protection not just for churches but for Christian business owners,” he said.
Not all religious organizations support Brownback’s move.
“I have trust issues. What’s the ulterior motive?” said the Rev. Kent Little, pastor of College Hill United Methodist Church in Wichita.
Little and his church support gay rights, and he recently spoke at a conference of Kansas and Nebraska United Methodists, who voted in favor of a resolution seeking to lift the denomination’s worldwide ban on gay marriage.
From the standpoint of clergy’s rights, “my first read on (Brownback’s order) is it’s unnecessary and really unwarranted,” Little said. “The ruling from the Supreme Court wasn’t a religious ruling, it really was about civil rights. In my opinion it doesn’t affect the religious community.”
From a governmental standpoint, “If a religious organization provided a service and was state-supported … that could get pretty sticky,” he said.
The term “religious organization” in the governor’s order could potentially extend beyond churches and apply to businesses because of the Supreme Court’s 2014 ruling that said businesses, such as Hobby Lobby, have a right to religious protections under the First Amendment, said Mark Johnson, an attorney with the Dentons firm in Kansas City and a lecturer at the University of Kansas.
The Kansas House passed a bill in 2014 that would have enabled both private and public workers to refuse to serve same-sex couples on religious grounds. The bill was scuttled by Kansas Senate leaders after it inspired international backlash.
This year Indiana passed similar legislation, which it later amended after calls for boycotts.
Brownback hinted last week that his administration would push for additional religious freedom protections in the wake of the court’s ruling on same-sex marriage.
Contributing: Dion Lefler of The Eagle