The Past Repeats: Christian Right Turns to Nullification to Counter Marriage Equality

About Frederick Clarkson

Kansas Governor Sam Brownback (R)

Kansas Governor Sam Brownback (R)

Last year in The Public Eye magazine, Rachel Tabachnick and Frank L. Cocozzelli warned of the trend on the religious and political Right toward the use of “nullification” as a means of resistance by states to federal laws of which they do not approve. So it should come as no surprise that we are now seeing Christian Right leaders turn to nullification tactics in an attempt to thwart the marriage equality ruling at the Supreme Court.

In Kansas, Republican Governor Sam Brownback has issued “EXECUTIVE ORDER 15-05: Preservation and Protection of Religious Freedom,” which seeks to indemnify anti-LGBTQ discrimination under the rubric of the state’s modified version of the federal Religious Freedom Restoration Act.

Brownback writes in the Order that  “the recent imposition of same sex marriage by the United States Supreme Court poses potential infringements on the civil right of religious liberty” and that, therefore, the state government shall not take  “action against a religious organization, including those providing social services, wholly or partially on the basis that such organization declines or will decline to solemnize any marriage or to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration or recognition of any marriage, based upon or consistent with a sincerely held religious belief or moral conviction…”

WHAT IS NULLIFICATION? Nullification refers to an attempt by a state, city, or municipal government to declare a law written by a higher governing body illegal and/or void within its jurisdiction. The idea of nullification gained notoriety during the civil rights movement, when Southern states attempted to declare federal civil rights laws nullified within their borders. These attempts are almost always unconstitutional. See more here: https://www.politicalresearch.org/2013/11/22/nullification-neo-confederates-and-the-revenge-of-the-old-right/

WHAT IS NULLIFICATION? Nullification refers to an attempt by a state, city, or municipal government to declare a law written by a higher governing body illegal and/or void within its jurisdiction. The idea of nullification gained notoriety during the civil rights movement, when Southern States attempted to declare federal civil rights laws nullified within their borders. These attempts are almost always unconstitutional. See more here: https://www.politicalresearch.org/2013/11/22/nullification-neo-confederates-and-the-revenge-of-the-old-right/

Thomas Witt, the executive director of Equality Kansas responded, saying “Our initial interpretation of this order is simple:  It’s one part scare tactics, one part ducking his constitutional responsibility.” He notes that the section of the Order stating that clergy will not be required to officiate at same-sex marriages is “nothing but political scare tactic.”

Brownback’s solution to a non-existent problem is, of course, consistent with the scare tactics against marriage equality being used elsewhere by Christian Right leaders.  In fact, no church or clergy has ever been required to solemnize any marriage of which they did not approve, including traditional heterosexual marriages.  This remains unchanged nationwide.

“The rest of the order,” Witt added, “is more problematic.”

“The plain language seems to suggest that religious organizations that have contracts to provide taxpayer-funded social services will be able to deny taxpayer-funded services to LGBT Kansans.  We are still having this analyzed by our attorneys, but if this proves to be the case, the Governor should be prepared to find himself on the losing end of more expensive litigation.”

Witt also points out that federally funded institutions like hospitals may not want to jeopardize their funding by invoking a religious freedom to discriminate, or allowing their employees to do so.

Also worthy of note is that Brownback is expanding the definition of sincerely held religious belief to “moral conviction.”  The plain meaning here is that one need not even offer the fig leaf of religious opposition, but merely claim a religiously denatured “moral conviction” of opposition to anything other than traditional marriage.

Governor Brownback told FRC president Tony Perkins (pictured)

Governor Brownback appeared on FRC president Tony Perkins’ (pictured) podcast to defend his attempt to nullify the Supreme Court’s decision on marriage equality.

The implication, Witt also notes, is that in light of the trend towards privatization of government services, state contractors and grantees for adoption services, foster care placement, and Medicaid will be allowed to discriminate. Witt and others also claim that cities and counties also contract with church-connected organizations “to provide low-income medical services, mental health services, nursing homes, homeless shelters, and domestic violence and human trafficking safe-houses,” and thus may also be afforded the right to discriminate. Witt says that by including the phrase “political subdivisions” in his order, the governor has “just declared himself the supreme ruler of every local school board, every state university, every community college, and every independent commission, hospital board, library board, township, city and county in our state.”

There is considerable initial dispute about whether the executive order extends that far (the governor belatedly said it does not). But if it does, the Order could conflict (among other things) with the anti-discrimination policies of major cities such as Lawrence and Topeka.

These are the kinds of legal tangles that are likely to continue to mark resistance to the implementation of marriage equality, whether or not the demagogues who take such actions expect them to succeed or not. Indeed, such political grandstanding is likely to make religious liberty a continuing issue in the 2016 election season.

The Kansas City Star reported that Brownback was interviewed by Tony Perkins of the Family Research Council on his regular podcast. Perkins, noted that “Brownback’s order was similar to one previously issued by Louisiana Gov. Bobby Jindal, a Republican candidate for president.”

Brownback told Perkins:

“[The Supreme Court’s decision in Obergefell v. Hodges] sent a shudder across the faith community across America, saying wait a minute, don’t we have religious liberty protections?”

“And what this, my effort here, is to express that yes, in the state of Kansas you’re not going to see the entities of state government used against your religious liberty protections when it comes to the issue of same-sex marriage,” Brownback said.

The governor said the issue needs to be front and center in the 2016 presidential election and warned that a “very fundamental right (is) being attacked in the United States.”

The partial nullification of federally guaranteed rights under the Equal Protection Clause of the Constitution and applied to the states via the Fourteenth Amendment, as articulated by the Supreme Court in the case of Obergefell v. Hodges, may be something we see more of in the next few years.  The court’s holding in the case was simple enough, “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

But opponents want to nullify as much of the reach of the rights of same-sex married couples as they can get away with, using the excuse of (and redefined notion of) religious freedom to do so.  Many obstacles will be thrown in the way of full equality by the likes of Sam Brownback.

However, it is worth marking that Brownback was not so unwise as to actually use the word “nullification,” even though that is exactly what he did last year when he signed legislation limiting the reach of federal gun control in the state.  The term has an ugly history as a Supremacy Clause-violating justification for state resistance to federal court decisions requiring equal protection under the law for African Americans. Those stands were taken under the colors of the Confederate battle flag. While Confederate flags are coming down, the Confederate nullification philosophy for which they stood still stands.

Frederick Clarkson, a Senior Research Analyst at Political Research Associates, has written about politics and religion for more than three decades. He is the author of Eternal Hostility: The Struggle Between Theocracy and Democracy and editor of Dispatches from the Religious Left: The Future of Faith and Politics in America. Follow him on Twitter at @FredClarkson.