Kansans should expect candidates seeking state office this year to address state laws and practices that discriminate against LGBT persons. Governor Jeff Colyer recently signed a bill that allows faith-based adoption agencies that receive state funds to refuse service to gay and lesbian couples based on religious beliefs. This law creates a license to discriminate, and LGBT Kansans should rightly wonder what laws the state will pass next that target their rights.
Defenders of the bill have contended that the new adoption law does not change existing practices. True, to an extent, but that argument misses the point.
Private adoption organizations previously have been able to exclude LGBT couples over religious beliefs, and the state made an administrative choice to work with them without any law directly addressing the situation. The new law formally recognizes that exclusion as “religious freedom” and codifies that state dollars can support groups that discriminate against LGBT Kansans.
If you are a LGBT Kansan, the state has essentially singled you out and placed you in a formal “separate but equal” system. If you want to adopt, there are some services that you can access, and others that you cannot even though the state is using your tax dollars to pay for them. And because states are increasingly moving toward adoption systems that rely on private organizations, in the long run this new law risks creating a system where LGBT Kansans in theory have a right to adopt but in practice do not.
What other groups does our state treat in this way?
The deeper issue here is that sexual orientation and gender identity are not protected under state non-discrimination laws in the same way that race or religion are, for example. That is precisely why overt discrimination against LGBT people, whether based on religious belief or not, is legal in Kansas.
Let’s take a different issue. Technically under Kansas law right now since sexual orientation is not protected under non-discrimination laws, an employer can refuse to hire gays or lesbians, and legally fire employees solely for coming out as gay or lesbian. That is legal from the state’s perspective given the absence of any formal protection for LGBT Kansans under state law. But, because religion is protected under non-discrimination laws, an employer cannot fire someone solely because they discover, for example, that their employee is Evangelical Christian or Catholic.
“Religious freedom” bills in others states have had provisions protecting the right of employers to not hire or to fire people strictly because of their sexual orientation or gender identity. Imagine that Kansas passed a religious freedom law that formally recognized that practice, actually writing into law a license to discriminate against LGBT Kansans in employment. Should LGBT people feel okay that no practices actually changed even though Kansas now formally singled them out for legal discrimination? Likely not.
Yes, some people see not associating with LGBT individuals as their religious right and want that perceived right protected by the state, but others understandably see that as discrimination. So, does the state choose equality for all, or does it choose a system where one citizen has the license to limit another citizen’s rights? Further, where does the state draw the line? If we protect discrimination in adoption, is employment or housing next? Our political candidates should have the backbone to let voters clearly know where they stand on these questions.
Patrick. R. Miller is an Assistant Professor of Political Science at the University of Kansas.