Davis Merritt: Legislating religion threatens liberty of all

02/17/2014 5:37 PM

02/17/2014 5:37 PM

No human has ever written a law that cannot lead to a dispute. The diversity of the human race, our naturally disputatious nature, and a plentiful supply of lawyers and other dedicated advocates ensure that litigation will arise.

That reality certainly applies to the dangerous “denial of service” bill passed last week by the Kansas House and quickly put at death’s door by the Senate’s leadership.

In saying the bill cannot advance without drastic revision, the leadership and other opponents cited its sloppy draftsmanship, the fact that it would allow public employees – including cops and firefighters and teachers – to deny service to certain people such as same-sex couples, and its contravention of existing state employment law.

It is, in short, a mess, a description not intended to disparage the legal craftsmanship of Rep. Charles Macheers, R-Shawnee, who introduced it in the House. That’s because he didn’t, in fact, write it; the botched effort is a “model” bill written by the American Religious Freedom Program, a Washington, D.C., lobby group.

The bill’s ambition is to protect employees who do not want to serve people whose living arrangements do not conform to the employees’ “sincerely held religious beliefs,” the actual wording in the bill. Legally sheltered, they could turn away anyone they know, believe or suspect is involved in a same-sex marriage or any other living arrangement that they frown upon.

While it’s unlikely any version of the bill will re-emerge, the Senate’s leadership shortsightedly left the door open for revisions, and judging by comments from some of the 72 “yea” House voters, the game is not yet over.

Even one opponent, Senate Vice President Jeff King, R-Independence, declared, “We just have to make sure that when we dig in our heels to fight for religious liberty that we do so for all Kansans….” The best way for lawmakers to protect religious liberty is to stay out of religion.

No amount of tinkering with language can cure the dangerous defect in the bill’s core idea, nor negate the fact that it threatens every person’s religious liberty because its aim is to make a law that elevates one specific religious belief over all others.

That’s not the province of any governing body in a democracy and is precisely the “establishment of religion” that the First Amendment bars Congress from enacting and that the 14th Amendment, by extension, bars states from enacting.

Because disputes can arise over the meaning and implementation of every statute, any version of this idea would create an unresolvable dilemma.

For instance, a business owner may have, as do many people, a “sincerely held religious belief” in unconditional love for all persons that leaves judgment of others to God (see “Francis, Pope”). If an employee turns away a customer because the customer’s living arrangement does not pass the employee’s muster and a dispute arises between the employee and employer, who decides which belief prevails? Does an arbitrator at the Department of Labor face the task of approving one “sincerely held religious belief” while rejecting another? Or a judge, or a jury?

The First Amendment recognizes the fact that all religious beliefs are insecure when governments legitimize some but not others. Its unambiguous prohibition protects every person’s religious liberty by firmly separating the spiritual from the temporal.

In entering that realm, this Legislature is well beyond its constitutional authority and its competency.

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