A group of seven Republican lawmakers in Kansas have introduced what is perhaps the most convoluted, if not cockamamie, attempt to roll back LGBTQ equality that has ever been dreamed up. The proposal is absurd and extremely unlikely to become law — Kansas’ governor, Laura Kelly, is a Democrat whose first official act was to reinstate protections for LGBTQ workers which her predecessor had eliminated. Nevertheless, the bill lends some insight into the minds of anti-LGBTQ lawmakers as they ponder how much leeway a Supreme Court with a conservative majority, and a rightward trending judiciary, might give them.
The idea behind HB 2320, the “Marriage and Constitution Restoration Act,” seems to be an attempt to provide a bulwark against the advancement of LGBTQ equality. As drafted, it would prohibit, overturn, and/or invalidate marriage equality and any benefits the law currently provides to same-sex couples, or any non-discrimination protections on the basis of sexual orientation or gender identity. It would eliminate the appropriation of funds to cover transition-related surgeries, and block any policy that might provide that a trans person be addressed by their proper pronouns.
From prohibiting the updating of the sex marker on a birth certificate, to halting any effort to ban conversion therapy, to ensuring that Kansas libraries are not permitted to promote “drag queen storytime,” this bill attempts to head off any policy that might respect, condone, ratify, or affirm LGBTQ identities.
But what makes HB 2320 truly unique is how it frames the rationale for such a massive reversal: It asserts that LGBTQ identities constitute a religion, and if the state of Kansas were to support any law that recognizes that religion, it would be in violation of the First Amendment’s Establishment Clause.
It is, as they say, a stretch.
We have never seen this level of extremist vitriol laid out in legislative language. These marriage bills combined are 18 pages of insults and name calling. Fred Phelps would be proud. The sponsors of these bills should be ashamed of themselves. #ksleg pic.twitter.com/2UN0iREBxX
— Equality Kansas (@KansasEquality) February 14, 2019
Down the rabbit hole
Nevertheless, HB2320 pursues its goal with a singular ambition, constructing a complicated skein of “whereas” statements in which to nest the peculiar idea that the LGBTQ community is a monolithic faith organization holding to a set of canonical principles. For example, one of these statements offers:
WHEREAS, The sworn testimonies of ex-gays, medical experts, persecuted Christians and licensed ministers demonstrate that there is no real proof that a gay gene exists, that the idea that sexual orientation is predicated on immutability is not proven and that sexual orientation is a mythology, dogma, doctrine or orthodoxy that is inseparably linked to the religion of secular humanism;
In other words, being gay is a matter of faith. And while It may not be an institutionalized religion, it is — these lawmakers assert — the equivalent of secular humanism, which was recognized as a religion by the Supreme Court in a unanimous 1961 decision overturning a Maryland state requirement that candidates for public office profess a belief in God. The government can’t pass laws that require a person “to profess a belief or disbelief in any religion,” the Court explained, nor can it privilege religions that include a belief in God over nonbelievers or over religions that do not include such a belief.
The Kansas lawmakers, interpret this ruling to mean that the government cannot endorse secular humanism, which the bill describes as consisting of “a series of unproven faith-based assumptions and naked assertions that suggest that morality and truth are man-made conventions and that at the heart of liberty is man’s ability to define man’s own meaning of the universe.” Secular humanism, they write, “refers to a religion that does not fulfill any compelling state interest, but instead, tends to erode community standards of decency.”
Homosexuality, sexual orientation, and transgenderism are “inseparably linked to the religion,” the bill asserts. So too are “polygamy, zoophilia, and objectophilia.”
From there, the bill attempts to flesh out how LGBTQ identities constitute a religion in exacting detail. For example, the measure asserts that the LGBTQ community is organized and has “a daily code by which members may guide their daily lives.” The bill provides no citation for this “code,” but it is asserted as fact in order to define the LGBTQ community as “a denominational sect.”
The LGBTQ community, the lawmakers contend, also has its own religious symbols. “Instead of having a cross, the ten commandments icon, or star and crescent, the LGBTQ secular humanist community has the gay pride rainbow colored flag to symbolize its faith-based worldview,” the bill explains.
Likewise, the LGBTQ community has its own belief structure:
WHEREAS, The ideas that “a person is born homosexual,” or that “a person can be born in the wrong body,” or that “a person can come out of an invisible closet and be baptized gay,” or that “to disagree with homosexual orthodoxy premises makes you a bigot” are a series of unproven faith-based assumptions and naked assertions that are implicitly religious and inseparably linked to the religion of secular humanism;
The community also has creeds — like “love is love” — which these lawmakers assert are a shibboleth, of sorts, that speak to the LGBTQ community’s hidden desire to oppress those outside their “denomination.”
WHEREAS, In the wake of the government’s endorsement of LGBTQ
ideology, when a secular humanist says that “love is love,” what they really mean is that they are amenable to government assets being used to oppress and marginalize anyone who disagrees with their beliefs, which is a position that is categorically “unloving”;
Those who object to the government’s endorsement of LGBTQ ideology (a.k.a. “the greatest sham since the inception of American jurisprudence”) have, to these lawmakers’ minds, become victims to an ideology that is about “dominance,” not “tolerance.”
These lawmakers go on to contend that these LGBTQ/secular humanists are “infiltrating public schools and public libraries,” to further “indoctrinate and proselytize minors to their religious worldviews.”
Though all seven of the lawmakers who sponsored HB 2320 are white, they contend at length that LGBTQ equality is particularly offensive to people of color. Much of the bill is inexplicably dedicated to drawing a distinction between race and LGBTQ identities despite the fact that it’s entirely superfluous to the bill’s stated purpose. In this way, it echoes a long history of equality opponents trying to “drive a wedge” between LGBTQ people against people of color.
“There are no ex-blacks but there are thousands of ex-gays,” the bill asserts without providing evidence of either this claim or the efficacy of efficacy of conversion therapy.
Continuing in this vein, the lawmakers contend: “Skin-tone is genetic and sexual orientation is faith-based.” In fact, there is a considerable amount of research demonstrating that there are biological components of sexual orientation.
These lawmakers claim that opponents of LGBTQ equality are simply “defending the integrity of the civil rights movement lead by Dr. Martin Luther King Jr. from an emotional ploy,” and that any claims that homosexuality is an innate, unchanging trait “has engaged in an act of fraud and racial animus.”
To really drive home the point, the bill asserts that any comparison between LGBTQ civil rights and race-based civil rights is offensive on its face:
WHEREAS, People of color at one point in this country had to ride on the back of the bus, walk to school and drink from colored water fountains, and for anyone to equate the race-based civil rights plight to the goal of many secular humanists to entangle the government with their religion is a per se act of racial animus that is deeply offensive to many people in the state of Kansas;
The bill avoids any mention of the well-documented oppression of LGBTQ people, including an unenforceable law criminalizing sodomy in Kansas. The entire point of that section is merely to claim that what amounts to naked anti-LGBTQ intolerance is actually part of a long tradition of fighting for the dignity of the oppressed.
Perhaps unsurprisingly, the bill is particularly concerned with the issue of marriage. It attempts to standardize the term “parody marriage” to describe any relationship that isn’t between “one person who was born male and one person who was born female.” These “parody marriages” include “marriages between more than two people, persons of the same sex, a person and an animal, or a person and an object.”
Leaving no doubt as to whether these lawmakers intended to equate bestiality with homosexuality, the bill explains, “All forms of parody marriages equally erode community standards of decency.” As marriage between a man and a woman does not contribute to the same erosion, the state has a compelling interest in providing for this sort of matrimony exclusively. Furthermore, as some taxpayers believe that such “parody marriages” are immoral, taxpayer money that supports benefits for those marriages violates the consciences of these taxpayers simply by mandating that they pay taxes.
According to the bill, the state will only license marriages between a man and a woman because they’re the only marriages that “do not put religion over non-religion, unlike policies that respect the various forms of parody marriage.”
As bogus as their bill might be, these Kansas lawmakers are hardly alone in testing the boundaries of the Supreme Court’s marriage equality ruling. Tennessee lawmakers have also reintroduced a bill that would explicitly declare Obergefell v. Hodges “unauthoritative, void, and of no effect.”
U.S. courts have never upheld the idea that a state can nullify a a federal law or ignore a ruling of the federal courts. In the first such consideration in 1809, the Supreme Court declared that Pennsylvania could not nullify a federal court’s decision lest “the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.”
That standard has persisted. When Arkansas tried to nullify the Supreme Court’s ruling desegregating schools in the 1950s, the Supreme Court similarly ruled against the practice. The Court specified that this even includes indirect attempts to avoid their implementation “through evasive schemes.”
Nevertheless, the larger concern isn’t whether the Supreme Court would suddenly change its mind on nullification. Rather, these challenges to marriage equality could provide an opportunity for the Supreme Court to revisit the question of same-sex marriage now that Justice Anthony Kennedy no longer sits on the bench. The court wouldn’t have to condone nullification to use that opportunity to weaken the marriage equality ruling Kennedy wrote or otherwise grant states some sort of exemption — religious or otherwise — to bypass it.
Fortunately, neither of these aforementioned bills seems likely to advance. The Tennessee measure failed to do so in its previous iteration, and Governor Kelly would, in all likelihood, halt the effort of these Kansas lawmakers in the event such a measure made it to her desk. Nevertheless, these efforts suggest that there might be some momentum among conservatives to push the envelope on such legislative approaches in the hopes that a more conservative Supreme Court might be amenable to rolling back LGBTQ advancement.
UPDATE: On the exact same day Kansas lawmakers introduced their bill, a group of Republican lawmakers in North Carolina introduced a nearly identical bill. HB 65 cut out a lot of the rhetoric that was in the Kansas bill, but along similar lines, it contends that marriage equality is a form of “secular humanism” that the government cannot endorse. It also includes similar language, such as the reference to “parody marriages,” which it says are “immoral, nonsecular, subversive to human flourishing, and go against community standards of decency.”
The North Carolina bill is less expansive, focusing only on marriage equality. Like the Tennessee bill, it dictates that the state will consider Obergefell v. Hodges “null and void and unenforceable” and it calls upon the Supreme Court to overturn it “respect the rights of each State and its People to decide matters over which the United States Constitution has not given jurisdiction specifically to the federal government.”
Additionally, the bill would make any marriage between individuals of the same gender, including those contracted in other states, invalid in the state of North Carolina.
Several of the North Carolina bill’s sponsors previously introduced a similar nullification bill in 2017. That proposal, however, did not attempt to equate the LGBTQ coommunity as a religious denomination. Rather, it cited the Bible as justification for its claims, asserting that the Supreme Court, in their marriage equality decision exceeded “the authority of the Court relative to the decree of Almighty God that ‘a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh’ (Genesis 2:24, ESV).”
Additionally, in 2018, both Wyoming and South Carolina also introduced bills using the “secular humanism” and “parody marriage” language. The language appears to have been originally devised by the radical activist Chris Sevier, who has filed many frivolous lawsuits challenging marriage equality. He is particularly infamous for arguing in various suits that states should legally recognize his marriage to his laptop.