The powerful senator started by thanking Witt sarcastically for the no-standing-room turnout, which she said would deter her supporters from speaking. She then sat stone-faced as witness after witness testified that their kids and homes were normal and healthy. After the hearing ended, Pilcher-Cook boiled over, and began lecturing the families that they had created children with no connection to biological parents, dooming them to difficult lives. The mothers and fathers yelled back, No, no, no—you’re wrong.
“This is about the whole anti-gay industry in the state,” said Witt, who has seen many discriminatory bills like that one surface in the legislature. The field general of the Kansas equality movement won the day, as Pilcher-Cook's bill died right there—but not the long struggle for statewide acceptance, inclusion and equal rights. That was made clear just 24 hours later.
One day after the surrogacy bill circus died down, across the sprawling capitol in Topeka, Republican Lance Kinzer, the House Committee on Federal and State Affairs chair, abruptly decided to take up another anti-LGBT bill, one that quickly gained national attention and could have had even broader discriminatory repercussions.
It was called a “religious freedom” bill, and would have allowed any state or private employee to refuse to do business with anyone who offended that employee’s religious beliefs. The concept wasn’t new. The bill had been introduced for several years but never got out of committee. But in 2012, GOP Gov. Sam Brownback and like-minded right-wing Republicans led a purge ousting moderate Republican incumbents. They were beaten in low-turnout primaries, in what one local politico called “the night of the long knives.” Only a few hundred votes, equal to a few evangelical congregations voting en masse, ousted the incumbents.
What ensued over the next few weeks shows why Kansas is in the national spotlight this fall as a slate of Democrats and independents, with support from moderate Republicans, threaten the dominance of hard-core social conservatives. These extremists include Brownback and Republican Secretary of State Kris Kobach, whose careers have been supported by Koch Industries and Koch-backed Americans for Prosperity, and who have created an anti-LGBT framework of laws and policies as wide-ranging as anywhere in the country.
That said, the LGBT equality fight is changing Kansas. The movement's struggle for equal rights and acceptance has been gaining traction in the state’s corporate sector, in public schools and universities, and in some religious institutions. The state’s political leadership has been a stubborn holdout, but that may be evolving as ongoing federal court rulings on same-sex marriage are forcing officials to reexamine discriminatory state policies.
“It’s a fight for the soul of Kansas,” said Brian Davis, a Sunflower State native and a descendent of a line of Methodist ministers who came back to Hutchinson, a hardscrabble city west of wealthier Wichita, where he is running as a Democrat for a Kansas House seat. “The fight all goes back to what they are hearing in their churches, and what they’re interpreting the Bible to tell them is good and right,” he said.
As he campaigned this summer, Davis said, voters slammed doors in his face more than once because of his support for a local anti-discrimination ordinance.
“I’m talking about the survival, the economic survival” of the state, said Sandra Stenzel, another descendent of Kansas settlers and a lesbian who, in 2004, was driven to testify in the state legislature against what became Amendment 1, the constitutional ban on same-sex marriage now being challenged in court. That ban remains despite the U.S. Supreme Court’s decision this month that upheld lower court rulings striking down marriage bans in five states, including neighboring Oklahoma. (A lawsuit challenging that ban was subsequently filed in the federal district court for Kansas and a hearing is expected any day now.)
Stenzel said her career as a successful local economic development official in northwestern Kansas unraveled after she spoke out by telling audiences that bigotry was bad for business. “Unless we want to be fiftieth in education, fiftieth in property tax revenues, first in unwanted pregnancies, we have to bring our kids back,” she said, referring to Kansas today, where outside two major metropolitan areas and towns with universities or military bases, vast swaths wither from depopulation. “We need to stop the discrimination.”
'We Can't Let This Go'
Anti-LGBT discrimination takes many forms in Kansas. Social conservatives paint homosexuality as a mortal threat to mainstream America and a Biblical way of life. At the same time, they have been able to enshrine their beliefs in public institutions through deliberate omissions in state law—not recognizing LGBT individuals and rights—and a willful silence from political leaders, including Democrats, to reverse them.
The religious right preaches that the Bible decrees homosexuality a sin and concludes same-sex marriages will undermine their timeless notion of family. Many Kansas towns have more churches and denominations than supermarkets or banks, and the most vocal anti-LGBT crusaders tend to be Old Testament preachers. They speak of a gay agenda, saying, like Baptist minister Terry Fox, who led the drive for Amendment 1, that overturning the marriage ban in 2014 would lead to polygamy, first cousins marrying, and public schools teaching students to embrace LGBT relationships. At the Kansas Family Policy Council, they call proposals to add LGBT protections to local non-discrimination codes “bathroom bills,” fearing new laws will lead to transgender women putting on bathing suits at public pool dressing rooms next to little girls.
From its top level on down, Kansas has become infused with a toxic strain of anti-LGBT politics. The Brownback administration is filled with people who have spent years on the front lines of the anti-LGBT and anti-abortion movements, and his resume is littered with anti-LGBT actions. While in the U.S. Senate, Brownback spent months blocking a judicial nominee solely because she had once presided over a lesbian commitment ceremony. As governor, while he was circumspect about his support for the religious freedom bill, it was clear to insiders that he pushed hard for the bill until it spurred a wave of national ridicule and indignation. His effort to repeal unneeded state laws in 2012 left sodomy laws on the books, leaving Kansas as one of about a dozen states that still criminalize gay sex. He even tried to stop LGBT activists from bringing rainbow flags to a Statehouse equality rally, claiming the flagpoles could be turned into "dangerous weapons."
The titans of corporate Kansas—David and Charles Koch, the principal owners of Wichita-based Koch Industries and arguably the U.S.’ biggest political donors—have a decidedly poor record on LGBT rights. David Koch has told reporters he supports gay marriage, but the brothers have been among the top backers of a wide range of the most notorious gay-bashing Republican politicians and conservative institutions in the country, including Michele Bachmann, Rick Santorum, George Allen, Jim DeMint, and the think tank DeMint now runs, the Heritage Foundation.
Koch Industries has donated to the campaigns of anti-LGBT politicians in Kansas, including Kinzer and Pilcher-Cook. In Kansas’ August primary elections, the Koch-backed group Americans for Prosperity supported many right-wing statehouse candidates who took the strongest anti-LGBT positions.
Kansas isn't just home to an actively anti-LGBT governor. Secretary of State Kobach, the former state Republican Party chair, is nationally known for his anti-immigrant views and associations. He is also avowedly anti-LGBT and has compared homosexuality with child sex abuse. Days before this August’s primaries, Kobach’s Prairie Fire PAC sent out gay-baiting mailers targeting moderate Republicans, including a House member ex-judge who opposed the religious freedom bill.
"The New Mexico Supreme Court upheld a $7,000 fine against a Christian photographer for politely refusing to take pictures of a same-sex 'commitment ceremony.' A baker in Colorado is being forced to undergo 'sensitivity training' and bake cakes for gay 'weddings,' in violation of his religious beliefs," Kobach’s mailer read. "Our 1st Amendment religious freedoms have never been in greater danger."
Kansas’ social conservatives, including some Democrats, have created a body of state law where there is no recognition of LGBT individuals or rights, which leads to an absence of legal protections and benefits. Just as Stenzel had no legal recourse when funding for her job was cut, married LGBT couples don’t get to share in the more then 900 benefits given to heterosexual married couples under state law. Political leaders from both parties—for different reasons—do not want to do much about rectifying that omission, or defending LGBT rights. There is no state agency that collects reports of LGBT discrimination, for example, allowing some social conservatives to say they have never heard of a case. Similarly, LGBT couples married out of state cannot change their last names on driver’s licenses, as the state doesn’t recognize those marriages. Likewise, lesbian couples cannot put both their names on hospital birth certificate as parents of their newborns.
The pathway for reversing unequal legal treatment is not straightforward. The Kansas Supreme Court has a precedent of treating rulings by the federal Tenth U.S. Circuit Court of Appeals as advisory, explained David J. Brown, the lawyer challenging Kansas’ 2005 gay marriage ban and other discriminatory laws. That tradition means early October’s U.S. Supreme Court decision that upheld Tenth Circuit rulings overturning marriage bans in Utah and Oklahoma hasn’t yet crossed state lines—because until last week there was no federal lawsuit challenging Kansas’ ban. Instead, Brown’s suit, which was filed in a state court and targets different tiers of state law that treats LGBT Kansans unequally, including its marriage ban, is at an early stage in the process. The result is that for now, discrimination remains embedded in Kansas law.
Last February, after the “religious freedom” bill was fast-tracked for a committee hearing in the Kansas House, Rep. Stephanie Clayton and other moderate Republicans urged their leadership not to take up the bill. They were shown the door, she said, which prompted them to go to House Democrats, whose leader, Paul Davis (no relation to Brian Davis), is running against Brownback and is currently tied in most polls. Kansas Equality’s Witt met with as many Democratic legislators as possible, but later heard that they were told by Davis’ staff to do nothing with the amendments he left on their desks. Clayton said she got the same treatment the evening before the bill came to the House floor—2014’s first major legislation—calling it a sleepless night.
“I was saying, ‘You guys, we have to run amendments. We’ve got to stop this. We can’t let this go,’” Clayton recounted. “They were saying, ‘It’s going to go. It’s going to pass. And if the Republicans want to do this, let’s let them do this.’ Me, being a moderate, I was thinking, ‘I don’t want bad policy to pass. I don’t care about the political implications. I cared about people I represented….Everyone knows someone who is gay.”
As the bill passed the House, Witt could not help but notice that only a handful of legislators, mostly Republican moderates, tried to stop it. A few Democrats also spoke out, but no one who had the legal firepower to counter Republican assertions that the religious freedom measure would do no harm.
“They completely folded. In fact, the House leadership wanted them to fold,” said Ryon Carey, a farmer and part-time political consultant who chairs the Kansas Democratic Party’s LGBT Caucus. “Democrats are scared to death of social issues here.”
Neither Gov. Brownback nor legislators Paul Davis, Pilcher-Cook, Kinzer or other Republicans who defended the bill in committee and on the floor responded to multiple requests for comment. Robert Noland, the Kansas Family Policy Council executive director, also did not respond.
Silence and Complicity
In Kansas as elsewhere, reversing anti-LGBT discrimination is as much about changing hearts and minds as about fixing bad laws. Those on the receiving end say it is hard for people who aren’t gay to understand what this second-class status feels like in daily life. It is not the same as being attacked for holding a controversial viewpoint. It’s being judged and violated because of one’s core identity, one’s sexuality. The reminders can be small slights or large slaps, and often arise in surprising moments.
“It’s when your straight friends talk about things that you have no access to—things they don’t even think about,” said Roberta Woodrick. More than 20 years ago, she married her partner, Julia, in a ceremony not recognized by the state, in Lawrence, the university town where both are campus librarians. They flew to California for a legal wedding in 2008, before that state’s voters nullified same-sex marriage. “It’s weird to be married in one place and by the time you fly home, you’re not married anymore,” Julia Woodrick said.
The couple lives in a split-level home in a modern subdivision that could be found in any small American university city. “We’re pretty private people when it comes down to it,” Roberta said. “I’ve often said, if you ask me to list 25 words describing myself, the word lesbian wouldn’t even be in my top 25. I am so many other things.”
As they entered their middle years, the sting of unequal treatment grew sharper. They had to pay thousands of dollars to a lawyer for medical legal directives and wills, so they could be on equal footing with some of the 900-plus benefits granted to traditionally married couples. They feared that if one of them lost their job, the other could not get health insurance offered to traditional spouses. They filed their state taxes separately, because the Brownback administration last fall issued rules requiring LGBT couples to file as individuals, after the U.S. Supreme Court held that the federal government could not discriminate against LGBT marriage.
This backdrop led them to become plaintiffs in the state lawsuit challenging the tax treatment as well as Kansas’ same-sex marriage ban. That suit was filed last December. When the religious discrimination bill hit the House floor weeks later, Roberta said they didn’t know what to think. “We didn’t know whether to be mad or laugh, because, suppose a friend and I—a co-worker—go into a store. Are they going to ask us, ‘Are you a lesbian couple?’ How exactly was this even going to fall out?”
But another of the lawsuit’s plaintiffs, Michael Nelson, who met his husband at the University of Kansas in the 1970s and is a Unitarian Universalist pastor in Manhattan, Kansas, has another take. “It’s a lack of pain that’s felt. It’s the numbness,” he explained. “It’s kind of like you don’t even consider that as part of something right or wrong. You just have displaced it somewhere in your subconscious, and you don’t access it very often unless you hear of someone killing themselves or being hurt because they are gay.”
“The toll is far more than just the visible things,” said Stephanie Mott, who until recently was Kansas Equality’s board chair. Mott is a transgender woman who now speaks to school nurses and educators, police departments and churches in Kansas and Oklahoma about transgender issues and the harm that comes from anti-LGBT bullying and prejudice.
“We’re talking about suicide. We’re talking about alcohol and substance abuse. People who are just never happy. People going through their whole lives and pretending to be someone who they’re really not,” said Mott. “It’s humanity. It’s dignity. It’s ability. It’s potential. It’s not just the person; it’s everybody that person comes in contact with.”
The Religious Right’s View
If you talk to the religious freedom bill’s proponents, they will tell you it is devout Christians who are under attack for their core beliefs by many mainstream institutions that embrace LGBT rights, and that they are the ones who need added legal protections.
“Absolutely,” replied U.S. Rep. Tim Huelskamp, a Republican who represents a large district in the northwestern part of the state in Congress, when asked if he thought the religious liberty bill was needed. “What you see here is a state that’s very concerned about its way of life... They see a culture that attacks their basic values and in many cases makes fun of them,” he said while walking through Concordia, a farming town, during a parade that drew several thousand people.
Huelskamp, who wrote the 2005 constitutional amendment banning same-sex marriage while a state senator, said he did not think anti-LGBT discrimination was a problem in Kansas. “I haven’t heard of any documented example of discrimination. But we have a number of documented examples against those who support traditional marriage. And our state constitution is very clear, as it is in 25, 26, other states, that we support marriage between one man and one woman.”
Huelskamp was interviewed in September, soon before the Supreme Court’s October 6 decision not to hear any same-sex marriage cases this term, which effectively upheld rulings overturning five state traditional marriage laws. These rulings are seen as runaway judicial activism by social conservatives like Huelskamp and Fox, the Wichita pastor who led the statewide campaign where voters approved the marriage ban. “It changes the structure of family. It affects everything,” Fox said. “It affects our general philosophy of life, the things that we're taught in the family. The church, for instance, was only a backup up for what mom and dad taught….It’s a Pandora’s box. It’s the overall breakdown of America.”
The federal court rulings also have led social conservatives to fear more local attacks from LGBT Kansans. When Stephanie Clayton, the moderate Republican legislator, spoke to a conservative gathering a few weeks before the religious liberty bill emerged, another GOP legislator “got up and gave his update and said, ‘Well, if we don’t have this bill, than a wedding photographer could be forced to go to a gay strip club for a bachelor party and take pictures.” The examples didn’t stop there, she said. “There was a New Mexico case, where a cake decorator would have been forced to decorate cakes for a wedding they didn’t agree with.”
These fears, which sound like Internet conspiracy theories, persist in Kansas. So too does the pain inflicted on LGBT activists who have to hold their heads high and not overreact as they urge officials at all levels of government to draw new lines against discrimination, such as in housing and the workplace. Huelskamp said he knows of no examples of LGBT discrimination, yet no state agency collects that data. Equality Kansas’ response to that void, which leads to a rhetorical stalemate where both sides talk past each other, has been to push small cities and towns to adopt anti-discrimination ordinances that would include such a record. Lawrence, founded by anti-slavery Bostonians, has such an ordinance.
Neighbor vs. Neighbor
Yet efforts to pass similar local codes in Manhattan, a university city near a military base, or in Salina, a north-central farming hub, or in Hutchinson, a poor ex-manufacturing city, all failed in recent years after campaigns led by the religious right. However, this August, Roeland Park, a middle-class Kansas City suburb, adopted an LGBT ordinance after a long and bitter battle.
“I live with my partner. We pay our taxes. We shop in Roeland Park. We take care of our families. We have the right to be protected just like anyone else, and the City Council finally recognized that,” said Michael Poppa, who described himself as an accidental activist who found himself leading this local campaign.
In June, opponents of the Roeland Park ordinance circulated anonymous flyers that said the measure would allow biological males—now transgender women—into women’s bathrooms and pool changing rooms. In public hearings for residents of the city of about 7,000, activists from national social conservative groups and local churches attacked LGBT Kansans who were sitting just feet away in the classroom-sized City Council chambers.
“I sat there and listened to opponent after opponent get up and speak from the community and tell me why I shouldn’t be protected. Why I shouldn’t have the same rights,” Poppa said. “[F]or that half an hour, it took me back to grade school. I saw the bullies again….I felt every emotion. I was that kid in the corner. The one that nobody wanted to talk to, the one that didn’t matter.”
“It’s hard to vote against equal rights for people,” said City Council president Marek Gliniecki, as he sat in a small office in the municipal building. He said his faith guided him toward a no vote. “I am Catholic. The church for the most part is against this type of legislation….It would be difficult for me as a faithful Catholic to vote for that, as much as I’d like to be a supporter,” he said.
“It’s been more than contentious, it’s been hell,” Gliniecki said in September, a month after the town's mayor cast a tie-breaking vote to adopt the ordinance. “I looked at cities, looked at San Antonio, as a model of trying to protect the church. There are fears that if a church had a fish fry that was open to the public and a gay couple showed up and demanded service, they could sue.” He said he viewed that example as a “serious threat.”
Religious Freedom
In the Kansas Capitol, these fears—and opposition to LGBT couples adopting children—were targeted in the religious freedom bill’s language. The wording was both vague and specific. It was vague in that its trigger—allowing any public or private employee to cite religious objections as a basis to refuse to serve someone—could apply to a straight interracial couple, not just LGBT individuals. And it was specific by citing precise settings from daily life where that decision to discriminate would be legal. The bill applied to “services, accommodations, advantages, facilities, goods, or privileges,” including those who "provide counseling, adoption, foster care and other social services; or provide employment or employment benefits... related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.”
This list did not just appear. It is tied to social conservatives’ other obsession: stopping abortion. Kansas is ground zero for America’s anti-abortion movement. Protests outside clinics during the 1991 “Summer of Mercy” led Congress to pass a nationwide buffer zone law for abortion clinics, which the U.S. Supreme Court repealed this year. Kansas' most famous abortion doctor, George Tiller, was murdered in his Wichita church in 2009. Republican Phill Kline, the ex-attorney general, ended up losing his law license for professional misconduct after harassing women seeking abortions at Tiller’s clinic. There are more than 60 different state abortion laws, with hundreds of rules governing Kansas’ three remaining abortion clinics. The religious freedom bill echoed that legal web.
But just as there has been more than one form of family for eons, there is more to modern Kansas than the God-fearing pioneers celebrated in the capitol’s epic murals. The metro areas, Kansas City and Wichita, have service economies and are dotted with corporate offices. Corporate Kansas was proud that Google chose Kansas City as a test site for installing citywide fiber optic broadband. But they cringed when Google put its offices in Kansas City, Missouri, which has anti-discrimination laws and more liberal politics. When the religious liberty bill arrived in the state Senate, another telecom giant, AT&T, decided enough was enough. After the House passed the bill, Jon Stewart ridiculed the state on "The Daily Show." One of the telecom’s top lobbyists, who is gay, pushed AT&T to tell the Kansas Chamber of Commerce, which helped put many right-wing House members in office, that AT&T would pull its sponsorship of a large Chamber dinner if it did not publicly oppose the religious discrimination bill.
The Chamber, with other business groups following, soon issued a press release saying the bill was unworkable because it would have allowed employees to defy their employers. The Senate president, Republican Susan Wagle, who is a fervent social conservative, cited those objections and surprised everyone—including Equality Kansas—by announcing that she would not go forward with it.
“When she killed that bill before it went to committee, I was so stunned that I actually broke out in tears, and I am not a guy who cries,” said Witt. “It was so out of left field.”
Fox, who confirmed those details about the Chamber's involvement, put the blame on Brownback, who many Kansas Republicans say is looking toward a second presidential run in 2016. “He dropped the ball on the religious freedom bill,” the minister said. “He could have put pressure on Susan Wagle to quit compromising. The House had already passed it. There were plenty of [yes] votes in the Senate. How do I know? I contacted them.”
Fox said that he and other social conservatives were summoned to the Statehouse after the decision. “We went into a meeting in the governor’s office with her [Wagle] and the governor,” he said. “Their argument was economic. Susan’s was, ‘the Chamber of Commerce.’ Brownback’s was, ‘Well, maybe that’s not an issue that we need to wade into right now.’ What he said so disappointed the conservatives here….I told him in that meeting it was going to hurt him. He was warned."
It might be tempting to say that LGBT Kansans are winning—as Fox does, citing the religious freedom bill’s fate, the failed surrogate parenting bill, the corporate embrace of LGBT rights, public school curriculums teaching diversity and federal courts backing marriage equality. “I hate to concede to Tom Witt’s people. Their side is winning,” he said. “If anything it is the right that’s fighting for survival, not the homosexual people. They’re winning it all.”
But Tom Witt scoffs at that assertion. Social conservatives control state government. Republicans dominate both chambers in the Legislature. If Sam Brownback is re-elected and brings a few new House members with him, he will have enough votes to propose an amendment to the state constitution giving him power to appoint Kansas Supreme Court justices. This July, Republican leaders pledged to revive the religious freedom bill. Right-wingers have all these advantages, Witt said, leaving him no choice but to keep fighting, hard. “This is a stalemate," he said. "We cannot get any of our proactive legislation passed, and they can’t get any of their hate bills. It’s been a stalemate since 2007.”
A Plaid State?
Yet beyond the world of Kansas politics, the state is changing. In 2004, LGBT Kansans like Tom Witt and Sandra Stenzel, who went to the capitol as a successful county economic development officer to testify that a constitutional same-sex marriage ban would be bad for business in rural communities that needed help, did not have any statewide politically active LGBT organization to turn to. Both said that Amendment 1's passage lit that fuse, which has pushed LGBT Kansans—estimated to be 3 percent of the population or 80,000 people—not only to organize, but to deliberately come out of the shadows.
“The visibility is good. We are humanizing ourselves,” said Sandra Meade, who is Kansas Equality’s board chair, the Kansas Democratic Party’s LGBT Caucus vice chair, and host of TransTalk, a Kansas City public radio program. “We are getting out there and being more visible. I mean, what family doesn’t have somebody who is gay, or know somebody down the street that’s gay, or somebody at work?”
“I think we have made great progress nationally on gay rights, obviously with marriage equality, and we have made phenomenal progress with transgender rights, but when you get to these deeply red states, like Kansas, where people are so conservative, it’s really hard to get through to these people,” said Meade. “You can sit down and you can talk to them about the science, or you can try to convey the humanity of the issue in front of them, and they simply won’t listen.”
Yet looking forward, it seems wrong to say that Kansas is an unchanging red state. This fall’s election, where a mix of moderate Democrats and Independents are seriously challenging right-wing incumbents, shows that. As Roeland Park’s accidental LGBT activist Michael Poppa said, Kansas is a “plaid” state—with red, blue and purple political threads. The community’s visibility is part of that coloration.
Last year, Mott convened the first statewide conference for transgender Kansans and last month another was held. This September, Topeka held its first Pride celebration and 2,000 people showed up; its organizers only expected 300. Kansas’ cities have liberal churches that welcome LGBT parishioners and conduct marriages, even if the state does not recognize them. Every public high school in Wichita, where Fox and the Kansas Family Policy Council are based, has gay-straight student alliances and half have active chapters, organizer Liz Hamor said. At the University of Kansas in Lawrence, 60-plus students showed up recently to hear Michael Nelson and his husband, Charles Dedmon, talk about their state-based same-sex marriage suit. Half the room raised their hands when asked if they had come out to their families.
Despite the enduring political and social hurdles LGBT Kansans face, the movement’s leaders are not waiting for the world to change—they are pushing that envelope themselves.
On the last Sunday in September, several hundred LGBT Kansas of every age stood on the steps of Wichita’s old courthouse for a rally and March for Pride weekend. “Hello, I’m Jackie Carter. I’m pastor of the First Metropolitan Community Church,” the tough-minded female minister said, as a handful of anti-LGBT protesters huddled on the sidelines with pamphlets and posters. “No more sermons today…but there are people among us, in this crowd, and people who you will see on the path today, and people down at the Indian Center that will tell you that you are not okay the way you are; that you must do something else in God’s eyes to be worthy—and that is not the truth.”
As Carter and other movement leaders spoke, Witt and a half-dozen teenagers unfurled a 25-foot-long American flag to carry in the parade. Witt had just urged everyone to vote. He would sit at a table all afternoon and help hundreds of people fill out registration forms.
Back in his office the next day, he said he had no alternative but to pursue “scorched earth” political tactics, such as packing the state senate hearing room for Pilcher-Cook’s bill outlawing surrogate parenting contracts. “The LGBT Equality movement has natural allies and not just allies of convenience, but allies of conscience and principle in the women’s movement and in the bigger civil rights movement,” he said. “What you see is a direct result of our tactics.”
And those tactics show no sign of stopping. A day after the U.S. Supreme Court affirmed Tenth Circuit rulings overturning same-sex marriage bans in Oklahoma and Utah, Witt turned to e-mail, Facebook and the phone and told Kansas Equality members to start showing up at county courthouses and applying for marriage licenses—even though Brownback announced that day he would enforce the state’s same-sex marriage ban. On Oct. 8, however, a handful of county judges started issuing marriage licenses, defying orders from state court administrators, creating an even more chaotic legal landscape.
“If you said that people are going to get marriage licenses this afternoon in Johnson County, I would have said, ‘You’re out of your mind,’” said David J. Brown, the lawyer challenging several discriminatory state laws including Kansas’ Constitution, adding that this confusion could only be settled by judges stepping in, at either the state Supreme Court or in federal court.
By October 10, the state Supreme Court stepped in, scheduling a hearing on November 6. It cited the U.S. Supreme Court’s rulings on Utah and Oklahoma and told state’s attorney generals to be ready to explain why the Kansas ban on same-sex marriage should stand. Meanwhile, the ACLU filed a suit in U.S. District Court in Kansas challenging the marriage ban. A hearing in that court is expected any day now.
David J. Brown went on to make a larger point that is easily lost in the melee over marriage licenses. Getting a license alone—as all this court action is expected to uphold—was not the same as repealing state laws that allow discrimination to continue, or putting new LGBT protections into law. “The question becomes, really, what is the value of that marriage license and will it be honored anywhere?” he asked. “It’s going to be honored in every state that recognizes same-sex marriage. Ironically, it might not be recognized in the state of Kansas.”
Newlyweds might want driver’s licenses with their married names, but still could be turned away, Brown said, citing just one example. There’s also the question of wider anti-LGBT discrimination in Kansas society, including what he expects would be a backlash from social conservatives if and when the marriage ban is eventually thrown out. That happened in 1967, he said, after the U.S. Supreme Court threw out a Virginia state law banning interracial marriage. He predicted what that backlash would be for Kansas’ social conservatives in this case.
“In truth, in Kansas the backlash is going to be that religious freedom act,” said Brown. “It’s going to come up in the Legislature again and they will most likely pass it this time.”
This is Part I of a two-part series. In Part II, AlterNet tells the stories of several LGBT Kansans, and how they've persevered despite living in a state where social conservatives still demonize them, and where they're often reminded of their second-class status.
The series was supported by the American Independent Institute.
