Viewpoint of the Roman Catholic Diocese of Salina

December 6, 2010

City Commission
City of Manhattan
1101 Poyntz Avenue
Manhattan, Kansas 66502

Re: Proposed Ordinance Amending Chapter 10 of the Code of Ordinances of The City of Manhattan, Kansas; Relating to Civil Rights

Dear Mayor Snead and City Commissioners:

Hampton & Royce, L.C. represents the Roman Catholic Diocese of Salina (the “Diocese”) and writes this letter to you on its behalf to address the proposed Ordinance Amending Chapter 10 of the Code of Ordinances of The City of Manhattan, Kansas; Relating to Civil Rights. The Diocese covers 86 parishes across north central and northwest Kansas, including St. Thomas More Parish, Seven Dolars of the Blessed Virgin Mary Parish and St. Isidore Catholic Student Center Parish within the City of Manhattan.

The Roman Catholic Church has historically been an advocate for those who suffer unfair discrimination and has condemned all forms of hostility towards any individual on the basis of sexual orientation¹. However, by providing special protection to sexual conduct not condoned by the Church, the proposed ordinance constitutes government endorsement of a moral viewpoint contrary to the teachings of the Church with respect to human sexuality, and empowers the city government to punish those who adhere to those teachings.

We are also concerned that the proposed ordinance's provisions concerning religious liberty fall short of what is necessary to ensure that churches in Manhattan retain the freedom to pursue their ministries. Specifically:

1. The definition of Employer includes any person employing four or more employees. The three parishes located within the City of Manhattan are organized as not for profit corporations and thus would constitute Persons within the definition of Employer, and thus are within the scope of the proposed Ordinance’s provisions for Unlawful Employment Practices. The Unlawful Employment Practices defined in Section 10-16(a), (d) (e) and (g)² specifically remove religious organizations from the variously described practices, but they do so only to the extent of discrimination based on sexual orientation and gender identity. Under the federal law, religious organizations are allowed to discriminate on the basis of religion as well. The Church would suggest that the exemption for religious organizations be expanded to include discrimination upon the basis of religion.

2. We are also concerned that the proposed Ordinance’s prohibition of discrimination on the basis of the extraordinarily elastic concept of Gender identity raises a host of concerns, from the practical to the metaphysical. Despite the ordinance’s reference to an individual’s “designated sex at birth,” one’s status as male or female comes into being as the result of one’s pre-natal biological and genetic makeup, not because of some process of post-natal human assignment. It is simply impossible that the Commission can anticipate all of the many disruptions that extending special protection to gender identity will unleash upon everyday life, and the consequences will surely prove severely disproportional to the true dimensions of any problem that might actually be at issue. The City should not codify the proposition that gender is an invention subject to change at the whim of the individual.

3. The definition of Public Accommodation reflects an intent to exempt religious organizations from the scope of the definition. However, it does not specifically use the words Religious Organization notwithstanding that there is a definition of that term within the proposed ordinance. It seems that the intent to exempt religious organizations from the Public Accommodation definition could be clarified by clearly stating that accommodations offered by Religious Organizations do not constitute Public Accommodations.

Even though the intent of the Ordinance appears to be to exclude Religious Organizations from the definition of Public Accommodations, the Church still has grave concerns about the conduct defined as Unlawful Public Accommodation Practices. In particular, the language

“except where a distinction because of biological sex is necessary because of the intrinsic nature of such accommodation, including but not limited to restrooms, locker rooms, dressing rooms, medical facilities, jails, and sports and recreational activities”

appearing as an exception to three of subsections in Section 10-17, is vague and ambiguous and seems certain to spawn litigation whenever it is invoked, whether to accommodate or exclude, in regard to an individual’s gender identity. At what point does a person’s gender sufficiently change such that the person’s biological sex is no longer the overriding factor in determining the availability of the particular facilities? How does one who offers a Public Accommodation make a decision as to which bathroom or locker room a particular individual should be compelled to use? Would not an Unlawful Public Accommodation Practice occur each time an attempt is made to gather the information needed to make such a decision?

4. The definition of Sexual Orientation expressly excludes conduct prohibited by law. By negative implication, Sexual Orientation as used in the proposed Ordinance therefore includes conduct not expressly prohibited by law. This broad definition thus creates special protection for behavior that is directly contrary to the moral teachings of the Church and endorses a moral viewpoint with respect to sexual relations among individuals of the same sex that the Church cannot condone. The Church has been precise, in its moral teachings, in distinguishing between sexual orientation and sexual behavior. It has condemned all forms of hostility to any individual on the basis of her or his actual or perceived sexual orientation. However, the Church also teaches that sexual activity between persons of the same gender cannot be reconciled with its beliefs and doctrines.

Similarly, the Church does not condone heterosexual relations outside of marriage. In contrast to the Church’s moral teachings, the proposed Ordinance makes no distinction between orientation and conduct not prohibited by law. Under the proposed Ordinance, those who fail to accommodate the practice of homosexual behavior or the advocacy of homosexual behavior by those whom they employ or to whom they provide housing or services would be in violation of the law. The Church is not morally neutral on the matter of homosexual behavior. The proposed Ordinance would take the City beyond neutrality on such acts and into active opposition to the Church’s stance. The result would be needless, recurrent, and widespread church-state conflicts of uncertain outcome.

5. As to Unlawful Housing / Real Property practices addressed by the proposed Ordinance, Subsection 10-18(j) reflects an intent to exempt religious organizations and organizations operated, supervised or controlled by or in conjunction with religious organization from Section 10-18. However, the exception to the exemption appears to infringe on religious freedoms by attempting to include religious organizations which restrict membership on account of religion. This raises concerns about entanglement of church and state, as the City attempts to determine what various religions can and cannot do within their own doctrine. The exemption for religious organizations should be crafted to be a broad as possible.

6. As a whole, the proposed Ordinance may appear at first blush to attempt to exempt Religious Organizations from its scope. This is certainly laudable, but the exemption is limited in scope and does not apply to Persons who are living faith based lives. In order to protect religious freedom, the Church strives to obtain as comprehensive a religious exemption as is achievable, not only for the Catholic Church, but for other religious institutions and individuals as well. One partial solution to this problem is to apply Title VII’s prohibition on religious discrimination, which is already incorporated into the current definitions used in the proposed Ordinance. But this alone is insufficient, as the Title VII protection does not cover all religious employers, and recent experience demonstrates that even covered institutions may face government retaliation for relying on such exemptions.

Without such additional protection, not only for the Catholic Church, but for all following their religious beliefs, the proposed Ordinance would jeopardize our religious freedom to live our faith and moral tenets in today’s society.

Conclusion

If the City Commission chooses to move forward with the proposed ordinance, we respectfully request that the Commission make the adjustments necessary to ensure that the religious liberties of individuals and organizations like the Catholic Church are protected. By implicitly bringing most same-sex sexual conduct into the scope of its protection, the proposed Ordinance extends well beyond the advertised protection of “orientation,” where the Church shares the concern. Instead, the Ordinance goes much farther, specially protecting and expressing government approval for conduct that the Church teaches to be morally wrong. It likewise would impose penalties on those who, for reasons of religious belief, could not comply with its mandates and prohibitions. Thus the Church must oppose its enactment.

The Church strongly supports efforts to protect persons with a homosexual inclination from unjust discrimination and we would encourage the City Commission to redirect its efforts towards that end, but homosexual conduct should not be extended special protections under the law.

Very truly yours,

HAMPTON & ROYCE, L.C.

/Terry D. Criss

¹See Excerpts from the Catechism of the Catholic Church on Chastity and
Homosexuality which are appended to this letter

²We note that there is no Subsection 10-16(c) nor was Subsection 10-16(c) reserved, so
this may be an unintentional omission.

Appendex

EXCERPTS FROM THE CATECHISM OF THE CATHOLIC CHURCH

Chastity and homosexuality

2357 Homosexuality refers to relations between men or between women who experience an exclusive or predominant sexual attraction toward persons of the same sex. It has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that "homosexual acts are intrinsically disordered." They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.

2358 The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition.

2359 Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection.