So-called Religious Freedom bill sheds anti-LGBT language

by Tom Witt
Kansas Equality Coalition Executive Director

In 2011, on the heels of the City of Manhattan amending their human rights ordinance to ban discrimination based on sexual orientation and gender identity, right-wing extremists introduced a bill they dubbed the Religious Freedom Restoration Act. Hidden in that bill was a provision that would have made local non-discrimination ordinances, such as the new one in Manhattan or the existing one in Lawrence unenforceable. The 2011 bill, HB2260, declared that on issues of discrimination, the only protected classes that would be allowed were those found in the current Kansas Act Against Discrimination, the statewide law banning discrimination based on race, religion, color, sex, disability, national origin or ancestry or in housing by reason of familial status. Any local ordinances, including university and school district policies, that included protected classes that went beyond state statute by including sexual orientation and gender identity, were declared not to be a “compelling government interest,””and could be challenged as likely to infringe on religious liberty.

Kansas Equality Coalition devoted significant resources to defeating HB2260. After two years of lobbying, action alerts, national media coverage, two Judiciary Committee hearings, and a lopsided vote in favor of the bill in the House, the bill failed to come up for a vote in the Senate last May. It died with the end of last year’s legislative session.

This year, the bill was reintroduced as HB2203. The key difference between last year’s HB2260 and this year’s bill is that the language undermining local ordinance and school district policies has been struck from this year’s version.

Because the language specifically targeting Kansas LGBT population was removed, Kansas Equality Coalition took a formal neutral position on the bill. This does not mean HB2203 is a good bill - quite the contrary. This year’s “Religious Freedom bill still has some language that makes it problematic. Most concerning is that, although the attack on local ordinances is missing, the bill still gives standing to someone who believes their religious liberties are likely to be burdened. In KEC’s testimony before the House Committee on the Judiciary, we pointed out that this low standard could lead to unnecessary litigation. We have also teamed up with the ACLU to try to have that phrase struck from the final version.

Some KEC members have, with good reason, questioned the strategy of taking an officially neutral”position on HB2230. This decision was not taken lightly, and was made only after discussion with our Board counsel and with ACLU attorneys. Our position on last year’s bill focused squarely on the language that targeted local non-discrimination ordinances and policies; with that removed, other factors had to be taken into account. First, KEC does not take positions on bills that do not have a direct and specific impact on LGBT equality. There are many bad bills introduced every year. Given our mission and our resources, it is not possible to take a position on them all. Second, we cannot be seen as moving the goal posts. Our objection to last year’s bill was clear, and the changes made this year met our demands from last year.

In a move that surprised many observers, Representative Lance Kinzer, the lead sponsor of these bills, acknowledged KEC’s objections during the House debate on February 28:

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For some who were here last year, you may know that there was some discussion and there was a lot of disagreement about what the impact of this bill might be on various local ordinances. There were some groups that were opposed to the bill because of some of that language. The groups that came forward last year and indicated concern, this one group in particular that was concerned about the impact of this on local ordinances dealing with sexual discrimination or sexual orientation discrimination, were neutral on the bill this year because of changes that were made in the language. So that controversy, which was really the only controversy, I think, with respect to the bill in this body, considered in another session, has been dealt with and is not a reason for concern at this time.”

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In the ongoing debate over LGBT equality (and other social issues), it is almost unprecedented for conservatives to concede any point to those of us struggling for equal rights. That Rep. Kinzer did so publicly on the House floor is a giant step forward for our position.

HB2203 now advances to the Senate. We will continue to watch it very carefully, as there are still opportunities for anti-LGBT amendments to be made to the bill. We also will continue to work with ACLU on removing the likely to be burdened phrase.