JURIST Guest Columnist Caroline Mala Corbin of the University of Miami School of Law says the Kansas Preservation of Religious Freedom Act denies equal access to basic human necessities and relegates same-sex couples to second class status under the pretense of religious freedom…

At first glance, the Kansas Preservation of Religious Freedom Act looks very much like the federal Religious Freedom Restoration Act (RFRA) and state RFRA laws that exist in at least 16 states. Under the Kansas act, any law that imposes a substantial burden on a religious practice is subject to strict scrutiny. Unless the challenged law advances a compelling government interest in a narrowly tailored way, the religious objector is exempt from that law. In fact, this was the constitutional test for federal free exercise claims until the US Supreme Court’s decision in Employment Division v. Smith made it much harder to bring religious liberty claims.

A closer inspection, however, reveals that the impetus behind the Kansas act is not protecting religious rights across the board, but protecting the right of certain religious groups to discriminate on the basis of sexual orientation. In particular, the Kansas act creates a defense to municipal anti-discrimination ordinances. Sparking the Kansas act was the city of Lawrence’s expansive anti-discrimination protection: in Lawrence, discrimination on the basis of sexual orientation and gender identity in housing, employment and places of public accommodation is illegal. According to its sponsor in the state House of Representatives, the Kansas act would, for example, provide a legal defense to a religious landlord who refused to rent to a same-sex couple.

As an initial matter, the Lawrence ordinances do not apply to all employers or landlords. The employment provisions do not cover mom-and-pop businesses unless they employ two or more people outside the immediate family. Similarly, the housing provisions do not reach landlords who rent out part of the house where they live. The ordinances also allow nonprofit religious groups to discriminate in favor of co-religionists in terms of providing housing or services, if offered on a noncommercial basis.

Because only substantial burdens on religion trigger heightened protection, the first question under the Kansas act is whether an anti-discrimination ordinance requiring a landlord to rent to a same-sex couple imposes a substantial burden on a landlord whose religion condemns homosexuality. The housing ordinance does not require the landlord to engage in homosexual conduct. Nor does the housing ordinance require any landlord to live with someone who does. It does not even demand financial support for the religiously condemned behavior. At most, the landlord may be said to facilitate religiously proscribed conduct by providing same-sex couples with a place to live, and presumably, sin. But does this mean a landlord’s religious rights are substantially infringed any time his company rents property to people who act contrary to his church’s teachings? If a landlord’s religion opposes contraception, does that mean his company can refuse to rent property to women who use it?

In addition, if “facilitating” religiously proscribed conduct amounts to a substantial burden under the law, then a large swath of discriminatory actions could be deemed legal. If providing shelter facilitates homosexual conduct, then arguably so does providing food and health care. Does this mean that restaurants and hospitals can refuse to serve gay and lesbian Kansans? May a storeowner or salesperson refuse to sell beds or bed linen to gay and lesbian customers because, well, wouldn’t that be facilitating their sinful conduct? The willingness to describe attenuated impositions as a substantial burden on someone’s free exercise of religion ought to raise questions about whether the law is really about protecting religious rights, or about animus towards an unpopular group of people. As numerous Supreme Court cases have held — including Romer v. Evans, which held unconstitutional an attempt to forbid any state action meant to shield people from sexual orientation discrimination — the latter is not a legitimate state interest.

Even assuming that renting to a same-sex couple imposes a substantial burden, compliance with an anti-discrimination ordinance is still required if the ordinance passes strict scrutiny. For example, in Bob Jones University v. United States, the Supreme Court refused to grant a religious exemption to an anti-discrimination policy because ending discrimination in education was a compelling state interest. Given the US commitment to equal citizenship, ensuring that no one is denied housing, employment and public accommodation because of immutable personal characteristics such as race, sex or sexual orientation ought to satisfy the compelling interest standard. After all, this kind of discrimination denies people equal access to basic human necessities and treats them as second-class citizens.

Yet the Kansas act deliberately precludes such a conclusion by defining “compelling state interest” in a way that excludes protection against sexual orientation discrimination. This extra effort to spell out that protection from sexual orientation discrimination cannot be a compelling state interest distinguishes this RFRA law from most other state RFRA laws, a couple of which actually specify that their RFRA may not be used as a defense against civil rights laws, and makes apparent the law’s hostility towards a discrete and insular minority.

Federal and state RFRA laws were passed in reaction to Employment Division v. Smith, which banned a religious sacrament that hurt no one. There is an argument that religious exemptions should be granted in cases where the law bans a sacred religious practice, and an accommodation for religious observers injures no one. This is not one of those cases. The burden on religion is attenuated while the harm to those who lose the protection of anti-discrimination law is severe. Nonetheless, the denial of equal access to basic human necessities and the relegation to second-class status is not only made possible by the Kansas act, but is its intent.

Caroline Mala Corbin is an Associate Professor of Law at the University of Miami School of Law. Her primary area of research is the First Amendment. After clerking for the Judge M. Blane Michael of the US Court of Appeals for the Fourth Circuit, she litigated as a pro bono fellow at Sullivan & Cromwell LLP and as an attorney at the American Civil Liberties Union Reproductive Freedom Project.

Suggested citation: Caroline Mala Corbin, Animus and the Kansas Preservation of Religious Freedom Act, JURIST – Forum, Apr. 23, 2012, http://jurist.org/forum/2012/04/caroline-corbin-religious-freedom.php.