Governor Brownback issues Executive Order protecting religious freedom of Kansas clergy and religious organizations

Sam Brownback
Gov. Sam Brownback (AP Photo/Orlin Wagner)

TOPEKA, Kansas — Governor Sam Brownback today issued Executive Order 15-05, “Preservation and Protection of Religious Freedom,” protecting the religious freedom of Kansas clergy and religious organizations.

The Executive Order recognizes that the protection of religious liberty from government infringement is a fundamental state interest and complements the protections of the First Amendment of the U.S. Constitution and Section Seven of the Bill of Rights of the Kansas Constitution. EO 15-05 prohibits state government from taking any discriminatory action against any “individual clergy or religious leader,” or any “religious organization” that chooses not to participate in a marriage that is inconsistent with its sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.

Governor Brownback issued the following statement upon signing the Executive Order:

“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.

“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.

“While we disagree with the decision of the Supreme Court, it is important that all Kansans be treated with the respect and dignity they deserve.”

The full text of the Executive Order may be found by clicking here or reading below.

EXECUTIVE ORDER 15-05

Preservation and Protection of Religious Freedom

WHEREAS, the protection of religious liberty from government infringement is a constitutional and fundamental state interest, and government is obligated to take measures that advance this interest by preventing government interference with religious exercise in a way that complements the protections mandated by the First Amendment of the United States Constitution, which provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

and Section Seven of the Bill of Rights of the Kansas Constitution, which provides:

The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship.

; and

WHEREAS, Kansas has a tradition of cooperating with charitable, religious, and private organizations in providing social services. Religious organizations and individuals have a long and distinguished history, which predates the State’s involvement, of providing critical social services. Religious organizations have a unique capacity to provide these services and thus deliver substantial benefits to the residents of this State; and

WHEREAS, on April 10, 2013, I signed H.B. 2203, enacting the Kansas Preservation of Religious Freedom Act, K.S.A. 60-5303, which makes clear that state government shall not “substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest” ; and

WHEREAS, the recent imposition of same sex marriage by the United States Supreme Court poses potential infringements on the civil right of religious liberty; and

WHEREAS, government actions and laws that protect the free exercise of religious beliefs about marriage will encourage private citizens and institutions to demonstrate tolerance for those beliefs and convictions and therefore contribute to a more respectful, diverse, and peaceful society.

NOW THEREFORE, pursuant to the authority vested in me as Governor of the State of Kansas, I hereby order and direct as follows:

  1. General protection of the free exercise of religious beliefs and moral convictions

The State Government is prohibited from taking any action inconsistent with the restrictions placed upon the State Government by the United States Constitution, or the Kansas Constitution, or the Kansas Preservation of Religious Freedom Act, against any individual clergy, religious leader, or religious organization on the basis that such person or organization believes or sincerely acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.

  1. Specific protections for persons and religious organizations

(a)  The State Government shall not take any discriminatory action against any individual clergy or religious leader on the basis that such individual declines or will decline to perform, solemnize, or facilitate any marriage, based upon or consistent with the individual’s sincerely held religious belief or moral conviction described in Section 1.

(b) The State Government shall not take any discriminatory action against a religious organization, including those providing social services, wholly or partially on the basis that such organization declines or will decline to solemnize any marriage or to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage, based upon or consistent with a sincerely held religious belief or moral conviction described in Section 1.

(c) The State Government shall not take any discriminatory action against a religious organization that provides social services or charitable services, which acts or intends to act upon sincerely held religious belief or moral conviction described in Section 1.

  1. Definitions

(a) As used in this Order, State Government means all departments, commissions, boards, agencies, and political subdivisions of the State of Kansas.

(b) As used in this Order, discriminatory action means any action taken by the State Government including, but not limited to:

(1) negatively alter the tax treatment of, or cause any tax, penalty, or payment to be assessed against, delay, revoke, or otherwise make unavailable or deny, an exemption from taxation of, any person;

(2) disallow or otherwise make unavailable or deny a deduction for state tax purposes of any charitable contribution made to or by such person;

(3) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny, any state grant, contract, subcontract, cooperative agreement, or loan from or to any person;

(4) withhold, reduce, exclude, terminate, materially alter the terms or conditions of, or otherwise make unavailable or deny, any accreditation, licensing, custody award or agreement, recognition, or certification from or to any person.

(c) Nothing in this Order shall be construed to prevent the State Government from providing, either directly or indirectly, any benefit or service authorized under State law.

This document shall be filed with the Secretary of State as Executive Order 15-05 and shall become effective immediately.

KSN spoke with Thomas Witt, the Executive Director of Equality Kansas, for his reaction to Tuesday’s order.

Thomas Witt, Equality Kansas, spoke with KSN after Gov. Brownback issued the Executive Order on Tuesday, July 7
Thomas Witt, Equality Kansas, spoke with KSN after Gov. Brownback issued the Executive Order on Tuesday, July 7

“The Supreme Court has ruled that same-sex marriages are legal and constitutional, and that withholding marriage benefits or the right to marriage from same-sex couples is unconstitutional,” said Witt. “If Governor Brownback thinks signing an Executive Order is somehow going to invalidate our marriages, he’s wrong.”

Most gay rights activists in Kansas said the governor’s order was either “harmful” and/or “unnecessary.”

“Clergy cannot be forced to conduct or officiate any wedding they don’t want to be at already. It’s always been that way… It’s going to continue to be that way,” continued Witt.

“We have absolutely no need to tell any church, anywhere, nor would we want to tell any church, anywhere, that they’re ‘required’ to perform some sort of wedding like this. It’s not constitutional for us to tell them that,” he said.

STATEMENT FROM KANSAS CATHOLIC BISHOPS

KSN also reached out to Diocese of Wichita Tuesday, following the announcement of the governor’s executive order.

This was their response:

“We are grateful that Governor Brownback has acted so swiftly to address some of the threats to religious freedom that have taken on new urgency since the United States Supreme Court’s misguided decision in Obergefell v. Hodges.

When five individuals on the Supreme Court redefined the institution of marriage for the entire country, the Kansas marriage amendment approved by 70% of the voters in 2005 was struck down.  Since, however, no court can change the true nature of marriage, many Kansans continue to recognize that marriage can only be the union of a man and a woman.  Those Kansans, and the religious institutions they belong to, should not be punished by the government for believing what almost all people everywhere believed until just a relatively short time ago.

No priest or minister should be forced by the state to perform a ceremony contrary to that priest or minister’s faith tradition.  Yet religious freedom means much more than this.  In America, religious freedom has not just meant the right to hold a religious ceremony in a private setting, confined to the four walls of a church.  In this country, religious freedom has meant the right to live one’s faith in one’s daily life, at home and at work, in private and in public.

Given the far reaching effects that redefining marriage will have on the law, and the fact that this incredibly consequential change in national social policy was effected by judicial fiat rather than the democratic process, there is tremendous uncertainty as to what the Obergefell decision will mean for everyday people just trying live their faith as they always have.

We urge Governor Brownback and members of the Legislature to make the protection of religious freedom for all Kansans a top priority in the coming months.  Generations of Americans have taken freedom of conscience for granted.  We, sadly, do not have that luxury anymore.”

  • Most Reverend Joseph F. Naumann, Archbishop of Kansas City in Kansas
  • Most Reverend John B. Brungardt, Bishop of Dodge City
  • Most Reverend Edward J. Weisenburger, Bishop of Salina
  • Most Reverend Carl A. Kemme, Bishop of Wichita

STATEMENT FROM ACLU OF KANSAS

The following statement on the Executive Order may be attributed to Micah Kubic, Executive Director of the ACLU of Kansas:

Gov. Brownback’s Executive Order 15-05 is unnecessary and harmful

“We are deeply disappointed by the Executive Order issued today, which is unnecessary and harmful.  Religious institutions have never been required to marry anyone outside their faith traditions.  Allowing same-sex couples to marry—as the U.S. Supreme Court has now ruled is the law of the land in all 50 states—does not change that in any way, and so today’s Executive Order is unnecessary. 

Today’s Executive Order is, however, deeply harmful in that it sanctions discrimination against loving, committed same-sex couples by all manner of religious organizations using taxpayer funding.  As a result of Executive Order 15-05, a homeless shelter that received a state contract or grant could refuse family housing to a gay couple with a child, or a foster care agency could refuse to place a child in their custody with the child’s family member just because the family member was in a same-sex relationship – and the state could not require them to treat all families equally.  In addition, singling out just one form of religious beliefs about marriage poses serious constitutional concerns. 

The governor’s action today is reminiscent of another ill-advised, discriminatory law – HB 2453, which Kansans emphatically rejected in 2014.

The ACLU of Kansas will continue to closely monitor the implications of this damaging executive order.”

For more information about the ACLU of Kansas, please contact Micah Kubic at (816) 994-3314 or visit their website at www.aclukansas.org.

Comments are closed.