By John Celock
Less than two weeks after the U.S. Supreme Court legalized same sex marriage, Kansas Gov. Sam Brownback (R) has issued an executive order that he says will protect religious freedom in the state.
Brownback on Tuesday ordered that state government would not take action against clergy or religious organizations that decline to participate in or provide services to same sex marriages, along with not taking action against religious organizations that provide social services and object on religious grounds to same sex marriage. The action follows a defeat of legislation in Kansas on the subject, which also would have allowed private businesses to refrain from providing services to same sex weddings based on religious belief.
“We have a duty to govern and to govern in accordance with the Constitution as it has been determined by the Supreme Court decision. We also recognize that religious liberty is at the heart of who we are as Kansans and Americans, and should be protected,” Brownback said in a statement. “The Kansas Bill of Rights affirms the right to worship according to ‘dictates of conscience’ and further protects against any infringement of that right. Today’s Executive Order protects Kansas clergy and religious organizations from being forced to participate in activities that violate their sincerely and deeply held beliefs.”
The executive order is prompting objections from the state’s leading LGBT rights organization, which says that the order is “unconstitutional” and could lead to discrimination against the LGBT population from religious organizations acting on behalf of taxpayers.
“I think Brownback has decided to treat gays and lesbians as second class citizens,” Equality Kansas executive director Tom Witt told The Celock Report. “This looks like a way to deny taxpayer funded services to gay and lesbian Kansans.”
Witt explained that his concern is that the state government contracts out various social services to private groups around the state, including religious based organizations. He said under the executive order he could see a soup kitchen or food bank operated by a church declining to provide food to a same sex couple based on the executive order.
Witt said that under the Supreme Court’s ruling his group does not see the executive order at all enforceable and that if Brownback and state government tries to enforce the order the state will “face some expensive litigation.”
Brownback has objected to the same sex marriage ruling since it was issued late last month. On Monday, the state government did announce that name changes and other state functions to recognize same sex marriages would be conducted by state agencies.
Rep. Kevin Jones (R-Wellsville), an ordained minister, said that he supports the order as a way to protect clergy and religious organizations that may object to same sex marriage on religious grounds. He said the order will provide protections. At the same time, Jones said that normally he prefers policy to be made by legislators and not through executive order but said in this case the executive order was needed.
“I think it is a good thing,” Jones told The Celock Report. “I have never been for executive orders but in this case I think it is important.”
In terms of Witt’s concerns that the executive order could lead taxpayer funded services being denied by religious groups, Jones said that he would have to look into the situation prior to commenting.
The order would impact a variety of state government agencies from taking action in situations, including the state attorney general, state consumer protection agencies and agencies regulating businesses and charities in the state.
Rep. Jim Ward (D-Wichita) said that he did not have a problem with protecting clergy who do not want to perform same sex weddings or from churches that would not want to rent out a church hall for a same sex wedding or reception. At the same time he said he had concerns that the executive order could lead to discrimination by businesses against same sex couples.
“When you engage in the marketplace you have to transact business with people you don’t like,” Ward told The Celock Report.
Ward said that among his concerns is that a baker or caterer could object to providing services to a same sex wedding because they belong to the Roman Catholic Church, which he said could be interpreted as being the religious organization under the executive order. He said if the order is interpreted in this manner, he is worried that it would lead to a “gray area” where private business can start objecting to serving same sex weddings. He said a host of legal battles could await the state.
“If it is just narrowly drafted that you can’t go to All Saints and use their community center or other facilities related to the church, those kinds of this are okay,” he said. “If you take it in to the gray area that is a concern. There is a whole gray area where the legal war will be fought.”
The religious freedom legislation in Kansas would have allowed private businesses to not serve same sex weddings based on the religious beliefs of the business owner or employees. A 2014 version of the legislation led to objections that the bill would allow police officers and firefighters to deny services to the LGBT population based on religious objections.
This is Brownback’s second executive order on LGBT policy this year. In February, Brownback repealed a 2007 executive order signed by former Gov. Kathleen Sebelius (D) that recognized sexual orientation and gender identity as a protected class of state employees. At the time Brownback said that he preferred for the policy to be enacted via legislation rather than executive order. A bill filed by Rep. John Carmichael (D-Wichita) to restore the protections remains pending in the Legislature.
Sebelius last month launched a national campaign to promote increased legal protections for the LGBT population. She told The Celock Report that she believed that Brownback’s first executive order was “solving a problem that Kansas didn’t have and ignoring the problems that are real and very much in the public focus.”
Witt said that he does not see the executive order as a way to comply with the Kansas state constitution but rather an objection from Brownback to the Supreme Court ruling.
“The stroke of the governor’s pen does not overturn a ruling of the U.S. Supreme Court,” Witt said. “We know what Brownback thinks of the court system but he does not get to overturn the U.S. Supreme Court in a fit of anger and discrimination.”