Is Kansas House Bill 2453, or as proponents call it, the “Religious Freedom Bill,” an effort to protect Kansans who find providing services to gay couples a violation of their religious convictions? Is it instead the anti-gay, “no-cake-for-gays” bill described by Comedy Central’s Jon Stewart? Or is it, perhaps, by its sweeping nature, both?
The bill, which passed the Kansas House of Representatives on February 12 by a 72-49 vote, legally shields individuals, groups, and businesses that, on the basis of “sincerely held religious beliefs,” “refuse to provide any services, accommodations, advantages, facilities, goods… [or] privileges… [or] social services… related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.”
This legislation was motivated by a debate in my home state about balancing conflicting individual liberties: How important is protecting a citizen’s right to do business with whomever he or she wants when contrasted with another private citizen’s right to avoid violating his faith? Those who oppose the bill might compare it with an effort to circumvent a shopkeeper’s obligation to serve any customer regardless of race. Those who support the bill might compare it with protecting a conscientious objector’s right to avoid fighting in a war. Which right is paramount? Should photographers, bakers, and florists be obliged to provide services to same-sex weddings? The answer has important implications for a national “religious freedom movement” which has spurred legislation in over a dozen states.
In February, “religious liberty” bills in Kansas and Arizona received considerable attention, debate, and often scorn. Reverend Dean Wolfe, Bishop of the Episcopal Diocese of Kansas and Vice President of the House of Bishops, is among those leading the charge against the Kansas bill. “This [bill] is about religious freedom in name only,” Wolfe explained to The Politic. “This is actually a rather cynical attempt to discriminate against gay, lesbian, and transgender people. I think they are trying to legislate a morality that matches their own, and we in the United States historically have been resistant to that kind of legislation.”
Many Kansans agree with Wolfe. But not all express their opinions civilly. Representative Randy Garber, who represents two counties in northern Kansas, informed The Politic that House members who voted for the bill received emails threatening their spouses and children.
To understand the atmosphere in the Kansas State House, The Politic caught up with several representatives who voted in favor of the bill, including Kansas House Speaker Raymond Merrick. A 14-year veteran of the House, Merrick represents the small, eastern community of Stilwell, a district of mostly farmland that pundits call “Raymerricka.”
“The bill was brought because there’s a possibility the U.S. 10th Circuit Court of Appeals could issue a ruling, essentially striking down Kansas’ 2005 constitutional amendment defining marriage between a man and a woman.” Merrick continued, “The bill was intended only to protect religious liberties should that opinion be issued.” Federal judges in Texas, Virginia, Kentucky, Oklahoma, and Utah have recently issued similar rulings.
House members worry such a decision could lead to further court rulings or legislation that would impinge on citizens’ right to religious freedom. “Under current federal (title VII) and Kansas law sexual orientation is not a protected class of persons. HB [House Bill] 2453 is proactive in that it is looking forward to a time when these laws will be changed,” explains Representative Garber.
What sort of legislation is Garber concerned about? “…The prophet Muhammad and the Koran condemn homosexuality. For anybody to think they have the right to force a Muslim baker or photographer to violate their religious convictions and be forced to attend or participate in a wedding that would blaspheme their religion is not what America is about. America is about the freedom to practice your religion in peace as long as it is not hurting anyone else.”
Representative Ron Highland, who represents five counties in northern Kansas, wrote a letter to his district outlining a set of circumstances where an obligation to serve all customers could abridge religious liberties. Specifically, he explained that the bill was meant to prevent the state from being able to punish (1) a house of worship for refusing to rent out its facilities for weddings that violate the institution’s beliefs, (2) a small business owner for refusing to provide services at a wedding contrary to his or her beliefs, or (3) a religious charity for providing adoption services. In his letter, Highland quotes James Madison: “Religion must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”
Representatives who voted for the bill feel that one individual’s right to religious freedom can be accommodated without infringing on another person’s liberties. Garber told The Politic, “It seems that when we talk about equal protection that we forget equal protection is for everyone, not just those on one side of the argument.”
House members even feel that recent court decisions target religious individuals. State Representative and bill sponsor Charles Macheers, a republican from Shawnee City, Kansas, explained during a House debate that he wrote the bill because he feared discrimination. “Discrimination is horrible. It’s hurtful…it has no place in civilized society, and that’s precisely why we’re moving this bill. There have been times throughout history where people have been persecuted for their religious beliefs because they were unpopular. This bill provides a shield of protection for that.”
Some House representatives intend the bill as a shield against discrimination, but many Kansans see the bill as a legislative sword enabling discrimination.
Although the bill aims to protect the religious rights of business owners, business leaders quickly formed the Employers for Liberty Coalition to lobby against it. Tom Witsman, president of the Wichita Independent Business Association, stated that the bill “limits recruiting ability for workers and the state’s ability to bring new visitors and businesses to Kansas.” AT&T’s Kansas president Steve Hahn agreed: “The bill promotes discriminatory behavior by businesses against their customers, and it interferes with AT&T’s management of our employees. It eliminates the use of fair business practices with customers in Kansas.”
Religious leaders are divided over the bill, and several publicly oppose it. Ministers from various faiths visited the State Capitol in Topeka to protest, including Kate Mcgee, a pastor at Trinity Presbyterian Church in Topeka. Mcgee argued that legislators’ personal view that homosexuals were sinners should not be codified into laws. “A bill like this, it discriminates against the very people that Christ would be sitting with and eating with today. If businesses rejected sinners, they would have no customers. They themselves wouldn’t be able to shop in their own businesses. Where does it stop?”
Wolfe agrees that state legislators’ efforts are misguided. “No one is suggesting that religious freedoms be abridged, but hiding behind religious freedoms is certainly a distortion of what Christianity represents. …As a Christian, it is difficult for me to hear people using the Christian faith as a reason to disobey Christ’s central command to ‘love your neighbor as yourself.’”
Bishop Wolfe also questioned the necessity and very legitimacy of the bill. “They keep coming up with fantastic cases of how this would abridge the religious rights of people – I think that they may exist, but they would be very rare. I think most people see this for what it is.” Wolfe elaborated, “To think of a parallel, during the civil rights movement, people could have said that, ‘our religious beliefs declare that God does not create everyone equal, and therefore we reserve the right not to serve people of color in our restaurant, at our lunch counter.’ I think we have seen through that, and see it for what it is. This seems like a similar attack.”
The public objected to the bill as well. After the vote passed the Kansas House, legislators’ phones rang repeatedly in the halls of the State Capitol. “They admonished me harshly for my vote,” Representative Highland told The Politic. A Kansas Facebook Group titled “Stop Kansas House Bill 2453” received 50,000 ‘likes’ within a week, and comments on Merrick’s public Facebook page conveyed Kansans’ anger and disappointment. “I have never voted for a Democrat in my life, but I will be this year. I don’t care who it is, as long as it isn’t you. Don’t bother to run for a second term,” writes one disgruntled constituent.
Melinda Becker, Yale ’15, hails from Norton, a small city in northwest Kansas. “Even in my overwhelming conservative district, people are speaking out against the law and against [Governor] Sam Brownback,” Becker explains. A poll of Kansas voters conducted by the national firm Public Policy Polling found that only 29 percent of Kansans support the bill, while 59 percent oppose it.
National media outlets soon picked up the story, describing the bill as “discriminatory” and “anti-gay.” Headlines asked, “What’s the matter with Kansas?” Newspapers reported that the broad wording of the proposed bill would empower government officials to deny public services to individuals they perceived to be gay.
An armed service member from western Kansas – who asked that his identity remain confidential – told The Politic that he felt ashamed when he read articles about the bill in the national media. “Allowing law enforcement officers to deny help to the very public they are supposed to ‘serve and protect’ cannot be covered within the very same constitution I, myself, have sworn to uphold as an armed service member. Many times I’m asked about the great state I claim as home. However, with the recent legislation that our House of Representatives has passed, I’m ashamed to the point of leaving the room when this issue is brought up.”
He added, angrily, “You can bet I will be partaking in the votes for new representatives who oppose this bill.”
Legislators in the State House argued that the bill had been misrepresented by the media. Representative Highland provided The Politic with discussion points from internal House deliberations. When asked whether the bill would give a law enforcement officer the right not to respond to a domestic violence dispute between same-sex partners, representatives are instructed to respond, “No. No court has ever construed religious freedom to nullify public officials’ responsibility to protect citizens against crime. Nothing in this bill would do anything to change that. Suggesting otherwise is unfounded and irresponsibly creates fears that have no basis in fact.” Representatives were also to explain that the bill does not give businesses such as fast food restaurants the right to deny service to same-sex couples “because the law’s protections are only triggered in situations ‘related to, or related to the celebration of, a marriage….’”
Nonetheless, Merrick readily acknowledges problems with the bill in his interview with The Politic. “Knowing what I know now about the bill, I would not vote for it again. The bill as written is open to too much interpretation, which is not the hallmark of good policymaking.”
In the wake of a national media spotlight, Susan Wagle, President of the Kansas Senate, distanced herself from the House legislation: “Public service needs to remain public service for the entire public.” But Wagle also indicated that she hopes to see a revised version of the bill.
Kansans might support such a bill if it unambiguously protects only private sector workers providing wedding-related goods and services. Even though only 29 percent of Kansans favor House Bill 2543, a poll by the Kansas Family Policy Council – a religious advocacy group which supports House Bill 2453 – found that 64 percent of Kansans would support a law “that protects a Kansan employee or business owner in the wedding industry from being forced to assist in a same-sex marriage – either by photographing, catering or providing some related service – if that meant violating their faith.” Although no national polling agency has confirmed these results, some Kansans approached by The Politic might support such a measure. “While it is the right of a business to refuse service to whom they see fit, government and law enforcement agencies do not have the same luxury,” argues the anonymous armed service member interviewed by The Politic.
But controversy over a religious liberty bill in Arizona put the religious freedom movement elsewhere on hold. On February 20, House Bill 2153 / Senate Bill 1062 passed the Republican-controlled Arizona House and Senate. It needed only avoid a gubernatorial veto to be made law, and Republican Governor Jan Brewer’s advisers had reportedly helped craft the legislation.
As in Kansas, however, the bill met strong opposition from businesses and the public. National media reported that the “anti-gay” Arizona bill would open the door to business discrimination against any demographic group. Major League Baseball announced that, “as the sport of Jackie Robinson… MLB has a zero-tolerance policy for harassment or discrimination.” The National Football League also took action, threatening to move the 2015 Super Bowl game to another state. A pizza restaurant in Tucson, called Rocco’s Little Chicago Pizzeria, taped a paper sign to its store window, reading “We reserve the right to refuse service to Arizona Legislators” – a picture of this sign was shared 10,000 times on Facebook. A Public Policy Polling survey of Arizona voters found that only 22 percent support the bill, while 66 percent oppose it. On February 26, Brewer vetoed the bill, explaining that its broad wording made it discriminatory. Soon afterwards, Brewer announced that she would not seek reelection.
On March 6, Wagle stated that the Kansas Senate would not revisit the Kansas religious liberty bill until 2015. In the meantime, Kansas State House Republicans and Governor Brownback face tight elections in 2014, and the support of business allies and moderate voters will be critical to any Republican success.
Over the last year, similar religious liberty bills were shelved or defeated in Arizona, Georgia, Hawaii, Idaho, Kansas, Maine, Mississippi, Missouri, Nevada, North Carolina, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, and Utah – but conservative activists consider these defeats a minor setback.
Family policy councils under the umbrella of Citizenlink, a religious, family-advocacy organization, continue to advocate religious liberty bills in 38 states, including several which have already considered the legislation. In Atlanta, for instance, State House Representative Sam Teasley says that his bill was just a victim of bad timing, and will be more successful when eventually reintroduced. In Mississippi, the State House created a Religious Freedoms Study Committee to prepare a report on the postponed legislation. Elsewhere, advocates have had more immediate success. In Oregon, voters are scheduled to decide a ballot initiative in the fall that would allow “religious belief exceptions to anti-discrimination laws for refusing services… for same-sex ceremonies.” With each effort, proponents have the opportunity to learn how to craft more politically palatable legislation.
Gay rights advocates have responded to the religious freedom movement by pressing for a federal employment non-discrimination act, which would bar any form of discrimination on the basis of sexual orientation. On March 11, Kansas House Representative Louis Ruiz introduced a bill that would prohibit companies in Kansas from refusing to hire or serve individuals on the basis of their sexual orientation. The state of Colorado and the city of Atlanta have already passed similar legislation.
Laws at the confluence of religious and gay rights – such as religious liberty bills and the employment non-discrimination act – are being hotly disputed across the country. Courts in New Mexico, Oregon, and Washington will soon decide whether photographers, bakers, and florists are obliged to provide services to same-sex weddings. It is possible that city and state governments will soon have conflicting regulations; if Georgia, for example, were to pass a religious freedom bill, it would supersede Atlanta’s non-discrimination law, but could in turn be called into question if Congress passes a federal non-discrimination act or the Supreme Court issues a pertinent ruling. Barring action by Congress or the Supreme Court, legislation will continue to diverge by state and even city.
Red state politicians would be wise to observe that opinions on the religious freedom movement systematically vary not just by region, but also by generation.
Young Kansans see House BIll 2543 as a matter of gay rights. Carl Palmquist, 2014 Governor of Kansas Boys State, told The Politic that the Kansas legislation “bears obvious resemblance to the Jim Crow laws.” Cross-sections of Public Policy Polling data reveal that while 63 percent of Kansas voters older than 65 believe gay marriage should not be allowed in Kansas, 61 percent of Kansas voters age 18 to 29 and 53 percent of voters age 30 to 45 support gay marriage. The median voting age in America is 44, and as generational shift in attitudes towards gay marriage continues there will be decreasing support for legislation such as religious freedom bills.
Joel Simwinga, 2011 Governor of Kansas Boys State, reflected on the consequences of the Kansas bill to The Politic. “I think the largest consequence of HB [House Bill] 2453 has been to push the ball along, further institutionalizing gay rights on the national stage.” Polling data bear out Simwinga’s position. Public Policy Polling’s 2014 poll of Arizonans found that that 49 percent support gay marriage, while 41 percent oppose it. This represents a 9 percent net swing since 2011, when there was 44/45 percent opposition to gay marriage. “Arizona’s a pretty good representative of how the nation is moving on gay issues,” says President of Public Policy Polling Dean Debnam.
Ultimately, the debate over how to balance conflicting rights may be resolved by overwhelming public sentiment. Judging by the controversy in Kansas, religious liberty bills will likely be narrowed to restrict public officials from any bias while permitting shopkeepers to honor their beliefs, but in time, even that type of bill will likely lose support.
One Kansas House Representative confided to The Politic on condition of anonymity that he regrets his vote for House Bill No. 2453, and would not vote for any modified version of the bill. “I messed up,” he wrote.
Even if the Kansas state legislature continues to rule broadly in favor of religious freedom, the next generation of voters will favor the obligation to serve all impartially as a matter of civil rights.