Before the Kansas Senate Judiciary Committee
March 6, 2014

Mr. Chairman and members of the committee, thank you for this opportunity to address the Senate Judiciary Committee regarding religious freedom protections in current Kansas law.  My name is Doug Bonney, and I serve as Chief Counsel and Legal Director for the ACLU of Kansas.

The ACLU’s mandate to protect civil liberties is deep and wide.  Religious freedom – one of our most treasured liberties – is a fundamental and defining feature of our national character.  Given our robust, longstanding commitment to the freedom of religion and belief, it is no surprise that the United States is among the most religious, and most religiously diverse, nations in the world.  Indeed, religious liberty is alive and well in this country precisely because our government cannot tell us whether, when, where, or how to worship.

We have the right to a government that neither promotes nor disparages religion generally, nor any faith, in particular.  We have the absolute right to believe whatever we want about God, faith, and religion. We have the right to act on our religious beliefs, unless those actions harm others.   We all should agree that religious freedom is an important shield, but should not be used as a sword.

The ACLU is committed to that long-standing vision of religious liberty, and I personally am committed to making sure that we retain that robust tradition of religious freedom.  In the early 1820s, my fourth great grandfather founded the Bethel Baptist Church near Palmyra, Missouri.  In 1871, my great, great grandfather founded the Mt. Olivet Methodist-Episcopal Church in Palmyra.  Those congregations continue to this day.

As an ACLU lawyer and in my private practice, I have represented religious people in free exercise cases.  About ten years ago, for instance, I represented some Amish people near Osceola, Missouri, who were cited for failing to display the slow-moving vehicle triangle on their buggies.  We raised a First Amendment defense and eventually persuaded the prosecutor to dismiss the charges.  The local State Senator introduced a bill in the Missouri Legislature to provide an exemption for religious objectors.  But the broader answer to the problem raised by that case was not a micro-directed law.  It was to make sure that the government has a compelling state interest before it passes a law that substantially burdens a person's sincerely held religious beliefs.  That is what the Supreme Court required under the First Amendment before 1990, and that is what the Kansas Bill of Rights has always required.

Kansas Constitution Establishes Gold Standard for Religious Freedom Protections

Kansas has a very bold and powerful religious freedom provision in the state Bill of Rights providing more meaning to religious freedom than the Free Exercise Clause of the First Amendment.  Section 7 of the Bill of Rights of the Kansas Constitution states, in pertinent part:
"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.”

In State v. Smith (1942), the Kansas Supreme Court observed "that the wording of this section of our Bill of Rights is much more in detail respecting religious freedom than is the First Amendment to the federal constitution."[1]  In that case, the Kansas Supreme Court specifically held that Section 7 protected Jehovah’s Witnesses from the state’s efforts to compel their children to salute the flag and recite the Pledge of Allegiance in opposition to their sincerely held religious that doing so violates the Ten Commandments.  In Smith, the Kansas court had the guts to protect minority religious beliefs in a way that the United States Supreme Court had refused to do in 1940 in the case of Minersville School District v.Gobitis.[2]

In Stinemetz v. Kansas Health Policy Authority (2011), the Kansas Court of Appeals held that Section 7 of the Kansas Bill of Rights requires courts to apply a four part test in considering religious free exercise claims.  First, the court must decide whether action attributable to the state has substantially burdened an individual’s sincerely held religious beliefs.  If so, the government must prove that it has an overriding or compelling state interest for burdening the individual’s religious beliefs and that it has used the least restrictive means to achieve that interest.[3]  This is essentially the same test that the United States Supreme Court adopted in Sherbert v. Verner (1963)[4]  and applied to First Amendment free exercise claims until 1990.

Kansas Preservation of Religious Freedom Act  (HB 2203) Provides Additional Protection for Religious Freedom
In addition, Kansas has strong statutory protections for religious liberty.  Last year, Governor Brownback signed into law HB 2203, the Kansas Preservation of Religious Freedom Act (KPRFA). K.S.A. 60-5301-5305.  That law provides as follows:

  • Individuals and businesses can challenge substantial governmental burdens on religion or government burdens on religion that are “substantially likely”;
  • Anyone can challenge a denial of government funding, benefits, access to facilities, or programs;
  • The government must show by clear and convincing evidence that it is burdening religion based on a compelling governmental interest of the highest order; and
  • Parties who win in court are entitled to a wide range of remedies, including attorneys’ fees.

In closing, religious liberty is well and adequately protected by flexible provisions of the Kansas Bill of Rights and statutes.  There is simply no need for additional statutory protections for religious freedom in Kansas.
Thank you and I will stand for questions.

[1] State v. Smith, 155 Kan. 588, 594 (1942).

[2] Minersville School District v. Gobitis 310 U.S. 586 (1940).

[3] Stinemetz v. Kansas Health Policy Authority, 45 Kan.App.2d 818, 850 (2011).

[4] Sherbert v. Verner, 374 U.S. 398 (1963).
News Coverage
"Senate leaders say they won’t pass religious freedom legislation this year", Wichita Eagle, 03/06/2014