Brownback defends approach to Supreme Court’s same-sex marriage decision

TOPEKA — Gov. Sam Brownback defended his administration’s reluctance to recognize same-sex marriages Thursday and floated the possibility that he will push to strengthen religious protections in Kansas.

Same-sex couples can obtain marriage licenses across the state in the wake of a historic Supreme Court decision last week. But they cannot get their names changed on their driver’s licenses, and gay state workers cannot add their spouses to their state employee health plan.

“You have to understand and get the mechanisms in place,” Brownback said. “So that’s what we’ve been studying in meetings with the attorney general and relevant Cabinet members. … We’re just examining it carefully. We’ll make sure we’ll protect people’s religious liberties as well.”

He would not give a timeline for when the state would recognize same-sex marriages. “We’ll try to get moving forward as expeditiously as we can. We just want to make sure we’re moving forward appropriately,” he said.

Gay rights activists say the governor is moving at a deliberately slow pace and point out that the marriages have been ruled constitutional by the U.S. Supreme Court.

“This is just more excuses from a governor who is so blinded by ideology that he has forgotten he took an oath to uphold and support the Constitution of the United States,” said Thomas Witt, executive director of Equality Kansas, an LGBT rights group.

“Government employees have to serve everyone equally. Same-sex couples now also deserve the same equal service and equal treatment as any other couple in the state of Kansas,” he said.

Court cases

The state has fought in court to preserve the ban on gay marriage passed by voters in 2005.

Attorney General Derek Schmidt withdrew one case Tuesday in state court against a Johnson County judge who had first made the order to issue licenses to same-sex couples in October. He said the case was moot after the U.S. Supreme Court decision.

But another case in federal court remains. That case, brought by the ACLU, caused a federal judge to rule in November that the state’s ban was unconstitutional. Some district courts, including the one in Sedgwick County, began issuing marriage licenses while others waited as the state appealed the ruling.

That case also addresses whether state agencies must recognize same-sex marriages and treat them the same as traditional marriages.

Mark Johnson, an attorney for the ACLU, said the Attorney General’s Office has been “completely silent” on the issue of recognition.

Schmidt’s spokeswoman, Jennifer Rapp, said in an e-mail that the office could not comment on the question of recognition “because there is still pending litigation on this issue.” She noted that attorneys in the office continue to provide legal advice to the Cabinet secretaries named as defendants in the suit.

Witt criticized that response.

“It’s an outrage, an absolute outrage, that they can’t answer the simplest of questions, which is should gay and lesbian Kansans be treated like everybody else or should we still be segregated under law,” he said. “This is not rocket science.”

Kerry Wilks, a Wichita resident who is a plaintiff in the ACLU suit, said there is nothing for the state to study.

“The reason we have all of these stall tactics is because there is this deep-founded belief that we are ‘less than,’” Wilks said. “And they are going to continue with whatever mechanism is possible to ensure that we are treated as less than equal as someone else in Kansas. … That is hatred and bigotry.”

A federal district court ruled Thursday that Louisiana – a state that had also held off on recognizing same-sex marriages at the state level – must offer the same rights and privileges to same-sex couples as it does heterosexual couples, specifically noting that same-sex couples must be allowed to file their taxes jointly.

Religious beliefs

Republican officials nationwide have pressed the issue of religious liberty in the wake of the Supreme Court ruling.

Kansas has had several contentious debates on that issue in recent years and appears poised for more.

Texas Attorney General Ken Paxton has interpreted that state’s religious freedom law as allowing individual clerks the right to refuse to serve same-sex couples seeking a marriage license if they object on religious grounds.

Kansas passed its own religious freedom law in 2013. Schmidt’s office would not say whether the Sunflower State’s law could be interpreted as Paxton was interpreting Texas’ law.

Senate Vice President Jeff King, R-Independence, who helped craft the 2013 law, said it restricts government from compelling a person to act against his religious beliefs, meaning that it would protect a clergy member from being forced to perform a wedding. He was uncertain whether that legal protection would extend to government employees.

“That was not a scenario that was ever discussed, nor personally from the standpoint ever thought about in the context of the 2013 religious freedom law,” King said, adding that whether the law extended to government clerks would be up to the courts and attorney general to decide.

In 2014, the Kansas House passed a bill that would have enabled government clerks and employees at businesses to refuse to serve same-sex couples. It was scuttled by Senate leaders after it inspired international backlash.

Brownback floated the idea of a new religious freedom law in the next legislative session. “We’re looking at that,” he said Thursday, without providing details.

Senate President Susan Wagle, R-Wichita, who played a key role in killing the 2014 bill, suggested to the Associated Press last week that lawmakers might need to revisit the issue.

But Thursday she said she thinks the state and federal constitutions and the 2013 law provide the necessary protections for religious liberty.

“It appears to me to be all-encompassing and our constitutional Bill of Rights appears to be all-encompassing,” she said. “However, that doesn’t stop lawsuits from happening.”

Wagle said government needs to ensure equal treatment – something she worried the 2014 bill threatened – but she also voiced concern that the Supreme Court ruling foretells future legal challenges for religious organizations that define marriage as a union between a man and a woman.

“Courts are rewriting law, and I believe that we’re headed towards a collision course between a deeply held right and respect for individual liberties that we have in this nation and a deeply held right and respect we have for religious liberty,” she said.

Wagle said there needs to be a clearer distinction between marriage as a legal matter and the religious institution of marriage.

This story was originally published July 2, 2015 at 10:56 AM with the headline "Brownback defends approach to Supreme Court’s same-sex marriage decision."