What's the Problem?
Our city of Manhattan has adopted an amendment to our anti-discrimination ordinance that extends the status of "protected class" to "sexual orientation" and "gender identity." As many throughout our community have acknowledged, some proponents of this legislation are quick to accuse anyone standing in opposition as being full of hate. However, we believe that local proponents have come to understand that Awaken Manhattan and many others locally are indeed NOT speaking out of hate, but rather out of political differences on this issue. We stand with the proponents in taking offense to anyone who would otherwise presume to speak out in hate on this or any issue, and choose instead to simply look at the policy issues involved. To read the entire proposed ordinance or to read a summary, please see our What is it? article.
Note: The following is in regard to the final draft of the city anti-discrimination ordinance.
The Top Ten Reasons for Not Implementing the Proposed Ordinance
1. It approves of that which is morally wrong.
2. The City has not demonstrated a need.
3. It violates numerous Constitutional provisions.
a. U.S. Freedom of Religion and Kansas Right of Conscience
b. Freedom of Speech
c. Due Process of Law
d. Principle of Sovereign Immunity
4. It promotes the very discrimination it seeks to prevent.
5. Compliance will be virtually impossible.
6. Compliance will be very expensive.
7. Though well-intentioned, there are grave unintended consequences.
8. The cost to the City will be exorbitant.
9. A Voluntary Board will be given vast powers.
10. There are better alternatives.
1. The ordinance approves of that which is morally wrong.
Most fundamentally we oppose this ordinance because the city government is exalting a lifestyle that is morally wrong. As those who believe that God -- not man -- defines morality, we believe the city government should base its moral standards on those defined by God in his revealed Word.
1 Peter 2:14 says God has appointed government officials "to punish those who do evil and to praise those who do good." However, granting "protected class" status to those engaged in a lifestyle that God has defined as wrong would be affirming sin.
It is often impossible for a government to make a morally-neutral decision. The fundamental role of government is to make decisions based on what is "right" and "wrong." The question is what standard will it use to make these judgments?
For more about the Bible's view on homosexuality, please see “Homosexuality and the Bible” in our "Articles" section.
2. The City has not demonstrated a need for the ordinance.
The Supreme Court of the United States has made it clear that before limiting First Amendment freedoms, a city must first meet the “compelling State interest test,” which includes (1) proof that the law is essential to further a compelling governmental interest, and (2) that it is the least restrictive means of furthering that interest.
The City has denied our request to complete a survey and thereby demonstrate a need. Not only should Manhattan take this critical step in establishing a need, failure in taking this step will likely lead to a failure in defending the ordinance against a legal challenge on constitutional grounds for failure to meet the first element of the compelling State interest test, which requires proof that the law is essential.
Of course, even if the they meet the first element, the City must also prove that the ordinance is utilizing the least restrictive means in order to meet the second element. We have offered the City a religious exemption clause, more fully described below, but they have refused to embrace such an exemption. This aspect of the proposed ordinance as well as others described herein will clearly demonstrate that the City has not attempted to utilize the least restrictive means available and will not likely withstand a constitutional challenge.
If the City loses such a lawsuit, a court may award attorney’s fees and court costs. In fact, the City noted in their August memo that the City of Boulder had estimated the cost of such a loss could be $1.5 MM.
3. The Ordinance violates multiple Constitutional provisions.
a. U.S. Freedom of Religion and Kansas Right of Conscience
The First Amendment to the U.S. Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
Section 7 - Religious Liberty of the Kansas Constitution states: “The right to worship God according to the dictates of conscience shall never be infringed,” and “nor shall any control of or interference with the rights of conscience be permitted.”
The "unlawful practices" of Article 3 of this city ordinance prohibit the free exercise of religion of individuals and organizations who may wish to consider their religious convictions when making decisions based on employment, housing and public accommodation regarding homosexuals, bisexuals and transgender individuals.
The "religious exemption" contains a clause that forbids religious organizations from discriminating as it pertains to "commercial activities...that are not connected to its religious purpose."
Multiple "unlawful practices" listed in Article 3 end in the following clause: "This subsection shall not apply to any act of a religious organization, association or society that is based upon sexual orientation or gender identity, unless the act occurs within the commercial activities of the religious organization, association or society that are not connected to its religious purpose."
The problem is that almost every church takes part in activities that could be considered “commercial,” like selling books or coffee, or running a soup kitchen or daycare, to name just a few. These churches would consider such activities to be connected to their religious purpose. Unfortunately, the churches will not have the benefit of getting to interpret the meaning of the law on their own behalf.
There is a dangerous precedent in patent law set by a case called Duke v. Madey, where a federal appellate court announced that research at a university is actually not part of their mission, but rather a business. Anderson hall would most likely reject this notion, just like most church pastors and elder boards would likely reject that any activity they participate in is purely commercial and not part of their mission as well.
The “religious exemption” clause should be extended to all individuals and organizations.
We commend Commissioner Bob Strawn who has taken the position that any religious exemption should not be limited to the churches, but should be for the people that make up the religion as they try to live out their faith in their daily lives. We agree with Commissioner Strawn as well as the Roman Catholic Diocese of Salina when they suggest that any religious exemption that fails to recognize the individual is truly no exemption at all.
We have provided the City with proposed language to be used in each section of the Ordinance, but they have denied our request to include it. The following is the context and the language of the proposed exemption from Daniel Blomberg of Alliance Defense Fund, a partnering organization of Awaken Manhattan.
“Manhattan should exempt all individuals and organizations whose conduct is protected by the First Amendment and by the Kansas constitution. The simplest, most effective way of achieving this result is by adopting a straightforward religious/rights of conscience exemption, one which reads as follows:
“The prohibition of ‘sexual orientation’ or ‘gender identity’ discrimination under the ordinance does not apply to: (1) the conduct of a religious organization, (2) the religiously or morally motivated conduct of any organization, and (3) the religiously or morally motivated conduct of an individual who is acting according to the dictates of his or her sincerely held religious or moral beliefs.”
This short exemption sufficiently protects the free exercise and conscience rights of all Manhattan citizens, both organizations and individuals. Anything less would expose the constitutional rights of Manhattan citizens to unnecessary infringement.”
b. Freedom of Speech
The First Amendment to the U.S. Constitution states: "Congress shall make no law...abridging the freedom of speech." Yet, Article III, Section 10-16 (h) of this city ordinance says it would be unlawful "for any person, whether an employer or an employee, or other to aid, abet, incite, compel, or coerce the doing of any acts forbidden under this Chapter, or to attempt to do so." Section 10-17 (c) and (d) say essentially the same thing.
This section makes it unlawful to speak, whether as an employer, employee or other, including third parties according to public testimony by City staff, to the idea that anything in this Act could possibly be improper, to the extent that such speech could be interpreted as “to aid, abet, incite, compel, or coerce” anyone to do anything forbidden under this Act.
For example, any individual who expresses that homosexual, bisexual, or transgendered lifestyles are not morally acceptable lifestyles could be perceived as inciting or compelling others to do something forbidden under the ordinance, which affirms these lifestyles as acceptable.
Our local pastors have already expressed deep concern that this ordinance could essentially attempt to keep them from sincerely loving and helping these individuals or from teaching their congregations how to do the same by preventing them from verbally expressing moral reservations in the process of offering them comfort and hope.
All citizens -- regardless of their profession -- should be allowed to verbally express personally-held beliefs that don't align with all the tenets of any ordinance without fear of being punished for expressing such beliefs. This ordinance substantially abridges such freedoms of speech granted by the U.S. Constitution.
c. Due Process of Law
The ordinance says "any aggrieved person who claims he or she has been, is being, or is about to be discriminated against" may file a complaint. Under this ordinance an individual or organization could be assessed fines or other forms of punishment without having done anything wrong, but rather simply for being accused that they are about to do something in violation of this ordinance.
This "about to be" language was taken from state law, where it only applies to housing. This is so that if a resident of an apartment complex, for example, has reason to believe that they are about to be evicted for an unlawful reason, they don't have to wait until they are homeless before they file the complaint. This provision allows them to have a roof over their head while they try to resolve the issue.
The Manhattan City Commission, however, and without explanation, has taken this "about to be" clause out of this limited context that relates only to housing and broadly applies it to all employment and public accommodation. This language creates an excessive burden on local businesses who would be required to provide a defense for such allegations.
Furthermore, this expansion would not only apply to discrimination of the classes of sexual orientation and gender identity but also to all other classes to which the ordinance applies (race, sex, military status, disability, religion, age, color, etc.).
Remember again that each of these Constitutional challenges must be able to withstand the requirements that when a law encroaches our basic human rights as defined by our Constitution, they must be essential and use the least restrictive means available.
Taking a public housing provision from State statutes that exists for the purpose of protecting our citizens from homelessness, and broadly expanding it without explanation to employment and public accommodation hardly seems to garnish the very high level threshold of essential or least restrictive means.
d. Sovereign Immunity
The ordinance attempts to place the City in the position of telling the County and State what to do.
There is an ages-old principal called sovereign immunity that provides that sovereigns are immune from liability from those individuals and organizations that are subordinate to it. For the sake of sustainable government, this theory provides in part that the state can't tell the feds what to do, the county can't tell the state what to do, and the city can't tell the county what to do.
However, according to the definition of employer in Section 10-2, this ordinance specifically requires the State and the County, both sovereigns of the City, to comply with this City regulation to the extent that they have any activities in Manhattan. Additionally, this ordinance would apply to the school board, which while not sovereign over the City, is still a distinct sovereign from the city, not subservient to it.
The reason for this expansive presumption seems to be that the draft of the ordinance was made in part by copying portions of the State statutes. This quickly explains why the federal government has been exempted from regulation in Manhattan under this ordinance, but it fails to recognize that the State is the sovereign and can regulate itself and all of its political and municipal subdivisions. The City is of course not in the position of the State, but yet presumes exactly the same authority.
This ordinance oversteps the principle of sovereign immunity. Approval of this ordinance would likely cause great discord for the city, as the Riley County commissioners have already expressed disapproval of the ordinance. The level of discord this one provision could cause for the City and all of its citizens with the State, two Counties and the School Board is enough of a reason to choose to delay, modify or not pursue this bill. It is a clear example of how much more this ordinance still needs to be thought out before adoption.
4. It promotes the very discrimination it seeks to prevent.
The ordinance allows for discrimination in order to create "balance."
Section 10-16 (j) embraces discrimination by saying that it is okay to implement quotas or to discriminate based on protected class in order to reach “balance,” which is completely undefined and thereby subject to abuse.
5. Compliance will be virtually impossible.
The definition for "gender identity" is ambiguous.
Awaken Manhattan appreciates that the City has attempted to exempt restrooms, locker rooms, etc., but it appears that City staff is uncertain whether their draft language will be meaningful. The provision they used was copied from State statute describing “distinctions” of “biological sex” that was not intended in any way to address transgender issues, and most likely will not be found to meaningfully exempt anything but that which it was designed to address – allowing only men in the men’s room and only women in the women’s room.
It does not alleviate the “essential” need described back in 2000 by the City of Boulder to provide a definition that is clear to the persons trying to comply with it. When broken down, this ordinance simply says little more than, "gender identity is gender-related identity."
At the same time, discrimination against people who would identify as belonging to either proposed group is almost impossible to define. City staff and leadership of the LGBT community have both admitted that clear definitions are almost impossible to draft.
Instead, City staff have testified that there are now at least three genders, “male, female and other,” and LGBT proponents have testified that it is more likely that there are 4, 5 or 6 genders, none of which have been formally defined. This, of course, is in opposition to the religiously-held beliefs of Christians who affirm only two genders ("...male and female He created them.")
Instead, a clear identification would have to be required in the definition. This is exactly what Boulder called “essential.” They rejected the notion of gender identity for the same issues of vagueness that our Manhattan Chamber of Commerce has called into question. They adopted instead Gender Variance. Their definition demonstrates further the level of clarity needed when addressing transgender issues, when it states that individuals will not be allowed to express a change in gender more than 3 times in 18 months.
The ordinance defines Gender Identity as "a person’s good faith and continuing presentation of the person’s gender-related identity..." While we appreciate the City's attempt to limit one's chosen identity to something that manifests itself on a continual basis rather than an ever-changing one, this definition is still too vague. Without a specific time frame, as given by Boulder, this provision is open to wide interpretation of what someone might consider a "continuing presentation" of any given gender-related identity. In addition, a restaurant manager denying access to a restroom has no basis to know whether a claim is of “good faith” or a “continuing presentation.”
While the City should have rejected the inclusion of gender identity from the ordinance for reasons of vagueness, which again takes us back to Fourth Amendment Due Process challenges, we have to press as to whether the commissioners truly believe that replacing it with something like Gender Variance and mandating on our employers something like “employees must be allowed to dress like a woman, then a man, then a woman,” or whatever other gender may emerge in our legal definitions, as much as 3 times every 18 months, is really what our employers want and expect from their city government.
Sexual orientation and gender identity are not easily identifiable.
Both of the protected classes being proposed are comprised of people who at some point in their lives, and sometimes for all of their lives, successfully hide their innermost feelings related to sexual preference and/or sexual identity from their closest of friends and family. An employer will never know for sure what any of his employees are doing in the privacy of their homes. Furthermore, apart from an assertion of the employee the employer could not know how employees feel about themselves in the innermost chambers of their minds. This ordinance unnecessarily exposes unsuspecting employers to having to defend against a discrimination complaint.
It is impossible for an employer to comply with definitions based on someone else’s "emotional, romantic and/or sexual attractions," as the ordinance defines sexual orientation in Section 10-2. The addition of "actual or perceived sexual interest" to the 4th draft of this ordinance only makes this section even harder to define and comply with. Justice cannot prevail when employers, whether men or women, are expected to be able to judge such personal feelings of another, and then be held in violation of civil law, subject to investigation, penalties and potentially much embarrassment, for simply not understanding the thoughts of another’s mind.
6. Compliance will be very expensive.
This is costly to business on multiple levels. Financially, there will be a heavy burden in meeting the requirements of the investigation and providing a legal defense, as well as the possibility of having to spend money in compliance and/or on hefty fines. There is even the possibility that refusing to comply may cause a business to close their doors.
Not only are there serious financial implications for any individual or organization who has a complaint filed against them, but there are also the very real emotional, physical, and social costs associated with being publicly accused of discrimination, and remember, this accusation could occur without any discrimination actually taking place and/or without the accused having any idea of the accuser’s self-asserted innermost emotional, romantic or sexual feelings.
The ordinance requires service providers to provide unisex restrooms, locker rooms, etc. if they wish to prevent people from using such facilities intended for members of the opposite biological sex.
In Section 10-16 (l), service providers are allowed to discriminate in the use of restrooms, locker rooms, etc. on the basis of gender identity "where a distinction because of sex is necessary because of the intrinsic nature of an employment facility or program." However, only such discrimination is allowed to occur "if a similar accommodation is provided." This suggests that service providers will be required to create unisex restrooms, for example, if they don't find it appropriate to allow men into women's restrooms or women into men's restrooms.
While we appreciate the City's attempts to allow for discrimination as it pertains to restrooms, locker rooms, etc., such an exemption is really no exemption at all if they are required to create unisex facilities instead.
7. Though well-intentioned, there are grave unintended consequences.
While there are numerous unintended and grave consequences that are mentioned throughout this document, including the loss of basic human rights as provided in our Constitution like freedom of religion, speech and due process of law for all citizens, there are a few specific consequences that our Commissioners have wrestled with in open debate while expressing concern. The creation of special rights for the LGBT community must not trump the following concerns.
The "sexual orientation" definition may provide “protected class” status for sexual “conduct” itself.
The definition of sexual orientation includes the following clause: "Sexual Orientation shall not mean conduct which is prohibited by law," suggesting that it does include conduct not prohibited by law. There are many kinds of conduct that are lawful yet highly inappropriate in a workplace, public accommodation, and even in housing. Establishing all such “conduct” as “protected class” would create the unintended consequences that employers, service providers and landlords will no longer be able to regulate such conduct in any manner, except that conduct which would violate other laws.
In an open letter to the City Commission, a group of 27 local pastors and Christian leaders advised that:
“God’s design for human flourishing as revealed in the Bible includes the enjoyment of sexual intimacy only within the beauty and bounds of a marriage commitment between a man and a woman. All other sexual behavior is sin, subject to God’s judgment.”
Of course the protection could also include conduct that falls short of intercourse but yet is still highly inappropriate in a workplace or public accommodation. This conduct provision is added without any explanation, and could lead to dangerous employment policies in order to avoid discrimination complaints as well as unacceptable, but protected conduct in bars, taverns, swimming pools, restaurants, etc. The City has denied our request to simply remove the last five words from the definition, leaving only "Sexual Orientation shall not mean conduct."
Protecting gender identity in public accommodations is particularly problematic.
As noted above, the City had a hard time defining “gender identity,” knowing how many “genders” exist, and even trying to provide a meaningful exemption for “public accommodation” as “based on sex.” It is not reasonable to believe that service providers will be able to implement let alone understand the provision or its exemption, when City staff were not even sure how to draft it.
As a result, anyone in Manhattan who attempts to prevent another person from accessing restrooms, locker rooms, dressing rooms, medical facilities, jails and sports and recreational activities and the like at a lodging facility, restaurant, bar, tavern, barbershop, beauty parlor, theater, skating rink, bowling alley, billiard parlor, amusement park, recreation park, swimming pool, lake, gymnasium, mortuary or cemetery, as provided in the definition of public accommodation in Section 10-2, could be found liable under this ordinance.
Because the definitions are so dependent on a person’s internal feelings and emotions, such an ordinance will be most susceptible to abuse. Any person regardless of whether they are truly struggling with or identifying with homosexuality, bisexuality or transgender issues, could assert a feeling of such issues and have a legally binding right to access any restroom, locker room, etc., he or she preferred, violating other’s very personal and basic rights of privacy, leading to a whole different set of liability exposures to service providers and the City.
The ordinance does not contain exemptions for service providers from having to provide unisex restrooms, locker rooms, etc.
While the exemption above is not substantive, the City could have added much clarity and circumvent future expense for itself, its businesses and its citizens, by specifically stating that no service provider will have to provide any sort of unisex restrooms, locker rooms, etc., except for “male” and “female.” We must remember that “protected class” status is very powerful, and activist judges through liberal interpretation of other statutes have required such provisions in other locations around the nation. Similar language can be found in Section 10-17(e) for the disabled. Absent such an exemption, it is likely that any or all service providers may be required to construct separate unisex accommodations for its patrons.
8. The cost to the City will be exorbitant.
STAFFING: Already senior staff at the City have spent substantial time, certainly hundreds of hours, simply researching and drafting the ordinance. Now that it has been approved, there will be much more training, implementation and management of the new process. This administrative expense will certainly exceed $100,000 across 2010 and 2011, at the exact same moment that due to budget constraints our community has been unable to afford a pay raise for our firefighters and school teachers.
In addition, if this ordinance is passed and not otherwise overturned in the near future, the potential for litigation is high and would be very expensive. In the City’s August 24, 2010 memo, they include language from the City of Boulder indicating that any such lawsuit might cost $1.5 million to defend.
The source of these lawsuits is at least two fold.
LEGAL DEFENSE: First, any number of entities, whether a national constitutional rights legal defense fund, a large corporation doing business in Manhattan like Hobby Lobby or Chick-fil-A defending against a filed complaint, or many others could challenge the ordinance based on its unconstitutional provisions. For example, City staff has already confirmed that a private photo studio would be in violation of this ordinance, if they refuse to take pictures of any sort of gay ceremony or celebration. Such an entity may be forced to go out-of-business rather than comply with a law that they do not agree with, or to retain legal counsel to fight such a law on constitutional grounds. A rational company could easily choose the latter.
LIABILITY EXPOSURE: Secondly, the City will have to enforce the provisions of the Ordinance, and in so doing could find itself in violation of the act. Such a violation could come by implementing the conflicting provisions in the ordinance as described above. Also, a violation could come from simply trying to keep law and order in our community. For example, police may try to force an inmate into male accommodations of the local jail based on anatomy despite his declared interest or feeling that he would prefer to be treated like a woman.
In addition to administrative expenses and legal exposures, the City could also cause itself to have to incur massive capital improvement expenses by having to provide unisex restrooms at all of its locations, unisex locker rooms at its pools, and the equivalent at any other place open to the public.
9. A Voluntary Board will be given vast powers.
The ordinance gives too much responsibility and authority to the Human Rights and Services Board.
The breadth and depth of the 14 distinct powers that are being vested in Human Rights and Services Board according to this ordinance doesn't seem appropriate for a voluntary board. Specific powers of concern include: subpoena witnesses and compel their appearance; require production of records, documents and other evidence; subpoenas to compel access to facilities; issue interrogatories; such powers being defined as equal to that of a district court; to hold public meetings, to take oaths and to take depositions, all on an equivalent basis with a district court; and to apply to the district court for specific performance of any action they may take.
Additionally, the ordinance grants the "hearing panel" (made up of three members of the Human Rights and Services Board) the authority to assess fines of $10,000, $25,000, or $50,000. This is too much authority to be given to a voluntary board.
It is important to note that this powerful board only has to be created because of the City’s desire to extend “protected class” status beyond the State’s provisions, in this case to sexual orientation and gender identity.
The creation of a "quasi-judicial" board is not an economically responsible decision.
The administrative expense of implementing all of the vast powers noted above will not be nominal, bringing us additional cost in a down economy -- especially when taxes seem to be high enough already. We agree with the several individuals and groups that stand ready to oppose any additional, unnecessary expenses. If the Commission had decided not to extend the protected class status to these new categories, then there would have been no need for the creation of this Board, and its vast powers and expenses would not be necessary.
10. There are better alternatives.
With the many complexities, it is better to leave such legislation in the hands of the State and/or Federal government.
As indicated above, City staff and even LGBT proponents have admitted that drafting this legislation is full of many complexities. Decades have been spent at the federal level trying to hone such legislation. But for some reason, instead of using existing federal legislation that has been negotiated out over the years, the City chose instead to use draft language referred to as ENDA that has been routinely denied at the federal level for the past 15 years. Then City staff borrowed State statutory language and inserted it into the ENDA language, but seems to have relied upon sections from the State laws that had been worked out for housing and the protected class of sex, and misapplied it for use in employment and public accommodation, and the protected class of gender identity, respectively.
We agree with our own Manhattan Mercury that these issues are simply too complex to expect our City staff with inherently limited resources to be able to adequately address, and specifically that such laws should be left to the State legislators who have many more resources available to them.
The best alternative would be to address the issues of harassment and unfair treatment of our citizens through personal relationships, earned trust, and careful education.
Rather than invoking the force of government to change people's attitudes, rather than waiting for third parties to fix injustices, and rather than trying to promote inclusiveness through the creation of even more classes of citizens, we believe these problems are best addressed through personal initiative, through friends, and through the teaching of sound values in our families, schools, and churches.
Those on both sides of this debate have already demonstrated their desire and willingness to meet together in private and to work toward mutual understanding and respect. Friendships have been made and tensions between groups have waned as a result of these personal initiatives. This isn't an issue that requires severe governmental intervention but one that requires people to work together to promote and protect the value and dignity of every human being, to better understand the many beliefs and values that we each hold, and to better learn how to allow for such diversity while loving our neighbors as ourselves.
