The Department of Health and Human Services has states spooked. At least, legislators in Kansas cited the administration’s contraception mandate as a reason to expedite passage of a bill to protect religious freedoms:
Supporters of a proposal in Kansas that’s described as an attempt to protect religious freedoms told state legislators Tuesday that President Obama’s ill-fated mandate for insurance coverage of birth control is a compelling example of why the measure is needed. …
The state House Judiciary Committee had a hearing on the proposed Preservation of Religious Freedom Act and is expected to vote on it by Monday. State Rep. Lance Kinzer, a Republican who is committee chairman, contends the measure simply writes into state law language from past Kansas court decisions for determining when government policies place too much of a burden on practicing religion. …
The bill would declare that state- and local-government policies shall not “substantially burden” people’s right to exercise their religious beliefs without showing a compelling interest and imposing the burden in the least restrictive way possible. It also would declare that people have the right to sue state and local government agencies if they feel their religious freedoms have been abridged.
Liberal activists in the state are not happy about this statute — but not because they support the president’s mandate (although they probably do). No, they’re worried that the Preservation of Religious Freedom Act will be used to nullify local and state laws to prevent bias — not just discrimination, but bias — against gays. The bill specifically says that the prevention of discriminatory practices — as outlined by Kansas state law and the Kansas and U.S. Constitutions — is a compelling interest for which the state might burden the free exercise of religion. It says nothing about local anti-bias ordinances that seek to make up for the fact that Kansas state law does nothing to prevent discrimination in employment, housing or public accommodations based on sexual orientation.
The response of these gay activists is instructive. It’s a further indication that some gay advocates think the free exercise of religion — when it reveals a bias against gay behavior — should itself be construed as discrimination. It underscores that an overlap exists between the purported rights of gays to marry and the long-acknowledged, constitutionally-enshrined right to religious freedom. Someday, for example, might the state not compel churches to perform gay wedding ceremonies or compel landlords to rent to gay couples even if they’re religiously opposed to gay behavior? I know a landlord who won’t rent to cohabiting couples because she’s religiously opposed. Should she not have the right to rent her property to whomever she wishes? The battle for state-recognized same-sex marriage is thorny precisely because of the way in which it eventually touches on religious freedom.
Incidentally, this Kansas statute sounds a little like the 1993 federal Religious Freedom Restoration Act, which passed the House of Representatives unanimously, passed the Senate by a vote of 97-3 and was signed into law by Bill Clinton. That statute says the federal government may “substantially burden” a person’s “exercise of religion” only if it “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest. The existence of the federal law doesn’t obviate the need for similar laws at a state level, but it is worth noting in this post that the federal law exists — and the HHS contraception mandate is in clear violation of it.