In 1966, the Kentucky General Assembly enacted civil rights legislation that made it illegal "to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement...on the ground of disability, race, color, religion, or national origin." [1]
Kentucky Revised Statutes defines public accommodation in this manner:
"Place of public accommodation, resort, or amusement" includes and place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public or which is supported directly or indirectly by government funds: except that(1) A private club is not a place of public accommodation, resort, or amusement if its policies are determined by its members and its facilities or services are available only to its members and their bona fide guests; and
(2) "Place of public accommodation, resort, or amusement" does not include a rooming or boarding house containing not more than one (1) room for rent or hire and which is within a building occupied by the proprietor as his residence. [2]
In essence, this statute states that any person or group choosing to do business with the public must not discriminate unless it is a private club or a private residence. For over thirty years, this law has sufficed. However, according to the actions of the General Assembly, it is not longer adequate. In the 2000 Session of the Kentucky General Assembly, Representative Tom Kerr introduced House Bill 70 to amend the aforementioned statutes.
Most new legislation is a reaction to a perceived problem. For example, legislators draft environmental laws to combat pollution and traffic laws to increase highway safety. House Bill 70 is no different. Kerr introduced it in response to concerns from a religious group in his district. The law compelled them to rent their facilities to a group that espoused beliefs to which they vehemently disagreed. As a result, they sought to change the law.
The Northern Kentucky Baptist Association (NKBA), a coalition of sixty-six Baptist Churches, owns and operates the Bullittsburg Baptist Assembly Camp in Boone County. Since the NKBA rents its facility to the public, it is required to comply with the public accommodation sections of the 1966 civil rights legislation. In 1996, the Free Inquiry Group, Inc. (FIG) rented the facility for a summer camp for children called Camp Quest. This group, headed by Edwin Kagin and his wife Helen, is a secular humanist group. "Secular humanists reject the supernatural in any form and believe rational discourse and the scientific method are the only proper channels for discerning meaning and values." [3] "[Helen] Kagin said the group is comprised chiefly of atheists, agnostics and free thinkers who use a 'rational' approach to life." [4]
Camp Quest occupied the Bullittsburg camp for nine days in 1996 without incident. However, during the nine-day camp in 1997 it became clear to Edwin Kagin that, despite the cordial attitude of the Baptists, the secular humanists were not truly welcome. Kagin chose not to rent the facility again. Instead, he moved the group to Ohio to a YMCA campground that did not express concern over the group's beliefs. Although the NKBA has not had to rent its facilities to any other groups that profess atheism, it approached Representative Tom Kerr to ask him to help change the laws. Members of the NKBA explained to Kerr that they did not want to rent the facility to this group, but were afraid of legal action under the pubic accommodation section of civil rights laws. Edwin Kagin denies that there was ever a threat to sue. [5] However, the NKBA maintains that the implied threat was the only reason that it rented to FIG. Attorney for the NKBA, Robert Winter argues that changing the law is necessary to avoid future litigation. [6]
Representative Kerr agreed. On January 4, 2000, Kerr introduced HB 70 along with nine co-sponsors. Kerr drafted the bill to do exactly what the NKBA wanted. It added a third section to the aforementioned definition of "public accommodation, resort, or amusement." This section excluded a religious organization if the use of its facilities would not be consistent with the religious tenets of that organization. Kerr felt this was the right thing to do. According to Kerr, the bill restored freedom to Kentucky's Churches. [7]
The House referred the bill to the Judiciary Committee for consideration. Representative Kerr was under the impression that this bill would not cause any controversy. He assumed this for two reasons: first, he felt that it is absolutely wrong to force a religious group to allow its property used to dispute its beliefs; second, he was informed by Robert Winter that the Kentucky Commission on Human Rights was supportive of the language in the bill. Mr. Winter presented Representative Kerr with a letter dated March 10, 1998 from Kathy Murphy, of the Human Rights Commission, stating that the Commission was supportive of the language. Mr. Winter obtained this letter in the 1998 session when he first attempted to change the law. In 1998, the language was added to Representative Eleanor Jordan's HB 707 in the form of a Senate Committee Substitute. Democratic Leadership in the Senate killed this bill in 1998 by recommitting it to the Senate Appropriations and Revenue Committee where it died. With a logical argument, supported by the Human Rights Commission, Representative Kerr assumed passage of HB 70 would be quick and painless. However, Kerr soon found out that passage would be much more difficult.
Kerr first learned that there was opposition to HB 70 on the morning of January 13, 2000, the same day the House Judiciary Committee would hear the bill. A messenger informed Kerr that the Human Rights Commission was not comfortable with the language in the current form of the bill. Although the language in the bill was the same endorsed in 1998, the Commission had changed its mind. HB 70 was the first bill on the agenda. Robert Winter and Wayne Lipscomb, pastor of the Union Baptist Church in Boone County, joined Kerr to present the bill. Winter testified that forcing a church facility to allow anti-God people to use their facility is inappropriate and creates an uncomfortable atmosphere. He explained the situation with the Free Inquiry Group's Camp Quest. He noted that the current law would allow the FIG to sue if the NKBA had refused the facility. He urged the Committee to report the bill favorably and offered to take questions.
Representative Kathy Stein from Lexington asked the first series of questions. She prefaced her remarks with an affirmation of religious liberty, but made it clear that she had concerns with the bill. She asked pointed questions about the nature of the discomfort that the Baptists experienced. Next, Stein pointed out the fact that she is Jewish and asked Winter if the YMCA could discriminate against her children because of this. Winter did not have a good answer and seemed unprepared to answer this question. In fact, he made it clear that this is a problematic situation. He noted that his interpretation would not prevent her son from playing basketball at the YMCA, but he did not wear a black robe. Stein seemed satisfied that she had gathered enough information to make up her mind.
Representative Susan Westrom asked him several questions concerning the FIG incident. Westrom repeatedly asked Winter if the Bullittsburg Baptist Assembly could have denied the group under any other grounds. Westrom, who is a religious person, had never heard of a problem of this nature. During Westrom's questioning, Winter made it clear that the only reason that they allowed FIG rent the facility was that KRS 344.130 forced them to. He also noted that there was no insurance to cover the cost of litigation or the possibility of a large award. For this reason, and this reason only, they reluctantly rented the camp to the FIG.
After Winter's testimony, Jeff Vessels, the Executive Director of the American Civil Liberties Union of Kentucky, testified against the bill. Vessels clearly articulated that the ACLU vehemently opposes the broad wording of the legislation. He spoke about several scenarios where groups could discriminate against minorities, women, and disabled persons in the name of religious liberty. Using Stein's example of the YMCA, Vessels claimed that the YMCA would certainly be able to discriminate against Stein's children. He claimed that this legislation was an attempt to use religion as a tool of hatred. He urged defeat of the bill.
On the motion of Representative Stan Cave and the second of Representative Joseph Fischer, the Committee voted to report the bill with favorable expression. Four Representatives chose to pass rather than make a decision. Representative Westrom explained her decision to pass. She said that she would like to talk to some religious leaders in her community. She felt that after talking to them, she would be in a better position to make a decision. There were four no votes. Two Representatives chose to explain their vote to the Committee. Representative Yonts felt the language was too broad. He did not rule out the possibility for voting for it in the floor if the language was more clear.
Kathy Stein took a firm stance against the bill. She said it was frightening because "There is a large segment in our society who believe that if we could merely go back to the fifties, when times were good, when women knew their place, when African Americans knew their place, when religious minorities knew their place, that somehow or another, we would have a better society. I am deeply and philosophically disagreed with that and I do not want to start in that direction, so therefore I vote no." [8]
Of the seventeen members present, the other ten, including Chairman Lindsay, voted yes without explanation. The Committee reported HB 70 to the full chamber by a vote of 10-3, with four passing. After much more controversy than originally expected, Kerr was successful in getting the bill to the Floor of the House.
For the next seventeen days, Kerr worked very hard to gather support for his bill. It was clear that he would have to amend the bill to gather enough support for passage in the House. Kerr filed four amendments over this seventeen-day period. Representative Stein also filed an amendment. Each of Kerr's amendments attempted to clarify the language to insure that religious organizations would not use race, gender, or disability to discriminate. This new language also prevented hate groups, such as the KKK, from claiming that they are a religious organization. It also addressed the concerns that Stein had brought up concerning the YMCA. If a religious organization sponsors a secular activity, it cannot discriminate for any reason. Finally, it clarified that a religious group could only use their religious beliefs, not race, color, gender, or disabilities, to discriminate. Kerr worked with individuals on each side of the bill, including the Kentucky Commission on Human Rights, to ensure that the final version would be able to garner enough support.
Stein's amendment would put the implementation of the bill under the oversight of the Human Rights Commission, but failed to pass the House. The House adopted Kerr's final draft, Floor Amendment 5, and passed the bill as amended 82-17. Kerr's bill now only needed to pass the Senate in order to go to the Governor. At this point, the language was very agreeable to most. Kerr did not expect much opposition. Once again, he was surprised. Several groups began to lobby against the bill. The ACLU and the Kentucky Fairness Alliance, who lobby for gay and lesbian rights, were the most vocal. While Kerr expected these groups to oppose such legislation, he did not expect the Kentucky Council of Churches to lobby against the bill. The Council of Churches chose to oppose the legislation because their leadership felt that any exclusionary actions by an individual Church could have a detrimental impact to the Church community as a whole. Several newspapers ran articles filled with negative comments toward the bill as well. In spite of growing opposition, Kerr continued to pursue the bill for the NKBA. On February 15, 2000, the Senate State and Local Government Committee considered HB 70. Robert Winter and Wayne Lipscomb again joined Kerr. Again, Kerr briefly explained the impetus for the bill and discussed the following provisions of the bill:
"Place of public accommodation, resort, or amusement" does not include a religious organization and its activities and facilities if the application of KRS 344.120 would not be consistent with the religious tenets of the organization, subject to paragraphs (a), (b), and (c) of this subsection.(a) Any organization that teaches or advocates hatred based on race, color, or national origin shall not be considered a religious organization for the purposes of this subsection.
(b) A religious organization that sponsors nonreligious activities that are operated and governed by the organization, and that are offered to the general public, shall not deny participation by an individual in those activities on the ground of disability, race, color, religion, or national origin.
(c) A religious organization shall not, under any circumstances, discriminate in its activities or use of its facilities on the ground of disability, race, color, or national origin." [9]
Kerr explained that sections (a), (b), and (c) is the language drafted with the help of the Human Rights Commission. Much to Kerr's chagrin, Beverly Watts, the executive director of the Kentucky Commission on Human Rights, testified against the bill. She stated that, indeed, the Commission had helped draft the bill, but it did not agree with the bill. Watts further insisted that it was a bad bill, but if it passes, the language that the Commission added should remain. Kerr retorted that he was surprised that the Commission had a problem. He also pointed out that the Commission was instrumental in drafting the original language and had approved the revisions. In essence, he felt betrayed, but still urged the Committee to pass the bill out with favorable expression. Next, the Committee asked Kerr and Winter several questions. Senate President David Williams began. He wanted clarification on what constituted a hate group. He was curious if a group that advocated hate based on religion, rather than race or color, would qualify. He also asked several questions that that indicated that he did not feel the language was clear enough. Senator Williams was most concerned with the fact that Churches are tax-exempt institutions. Because they receive preferential treatment from the state, it seems to reason that people will consider this state-sponsored discrimination.
Senator Elizabeth Tori addressed Representative Kerr next. She wanted to know if he anticipated a big problem in the future. Kerr replied that the legislation was a preemptive measure designed to protect the religious liberty of religious groups. Essentially, one incident is too many. Kerr reiterated that a lengthy court battle based on the current law posed a danger to religious organizations. After Kerr's discussion with Senator Tori, Senator David Karem, the Minority Floor Leader, addressed his question to Reverend Wayne Lipscomb. Karem pointed out that Bob Jones University, according to the newspapers, vehemently opposes interracial dating and marriages. He asked Lipscomb if, under section (a) of the bill, Bob Jones University could claim that it is a religious organization. Lipscomb was not able to clearly articulate an answer. Karem interrupted him and told Lipscomb that he sounded like a lawyer. He asked the question again. Wayne Lipscomb was obviously not able to tell Karem what he wanted to hear, so Karem interrupted him again, mid-sentence, and opined on the subject. Senator Karem explained that he felt Bob Jones University is a hate group under his reading of the bill. Karem also pointed out that, as a Roman Catholic, he did not agree with Bob Jones University's teachings, but it is clear that it is a religious organization. After a few brief comments by Senator Julie Rose and Chairman Albert Robinson, everyone prepared to vote. Senator Gary Johnson made a motion to report the bill favorably; Senator Rose seconded this motion. Of the nine members present, Karem recorded the only no vote and Williams chose not to vote. The Committee reported HB 70 favorably to the Senate Floor by a vote of 7-1.
Senator Dick Roeding carried the bill in the Senate. The Majority Floor Leader Dan Kelly called it up on February 23, 2000. Roeding spoke in favor of the bill, and stated that it restores religious liberty to religious organizations. Senator Tim Shaughnessy spoke against the bill. He disagreed with the fact that Muslims, Jews, or Catholics could be discriminated against, not just atheists or agnostics. Senator Ernesto Scorsone also spoke out against the bill. Scorsone claimed that exempting churches from civil rights laws was saying that it is okay to discriminate. "'If churches are going to walk that line, they have to play by the same rules and they can't discriminate,' Scorsone said. 'What comes next? Church buses don't have to follow the speed rules?'" [10]
After rather emotional speeches from both sides, the Senate considered passage. Several Senators, mostly social moderates, did not vote. The bill passed the Senate 17-12. All twelve no votes were cast by Democrats. Republicans cast thirteen of the seventeen yea votes. Because the Senate passed it without amendments, the bill went to the Governor for his signature. The publicity surrounding the passage of HB 70 sparked a big lobbying campaign to ask the Governor to veto it. The ACLU and the Kentucky Fairness Alliance led the charge. On March 8, 2000, these groups got their wish; Governor Patton vetoed HB 70. It would have become law without his signature if he had waited one more day. Patton stated that House Bill 70 compromises and violates...both the spirit and meaning of the Kentucky Civil Rights Act by permitting discrimination on the basis of religion, the free exercise and non-establishment of which were among the fundamental principles in the founding of our state and country. [11]
Representative Kerr was very surprised by the Governor's action. He felt that the Governor was misinformed by those with whom he had discusses the legislation. "'All the bill does is restore a certain amount of freedom to Kentucky's churches,' Mr. Kerr said. 'I don't see it as a discrimination bill at all.'" [12] Others like Kathy Stein celebrated. She referred to the bill as an attempt to legalize religious bigotry. She personally went to the Governor's office to thank him.
Unfortunately, for Stein, the House already had enough votes to override the veto. The only question that remained was if the Senate could get three more votes. While Senator Roeding was looking for three more votes, Stein was confident that the Senate would affirm the veto. "They will not be able to override it..." said Stein. [13] Roeding felt confident that he could. In fact, Roeding was able to get a lot more than three. Roeding was able to convince seven who did not vote the first time to help override the veto. Senate President David Williams and Majority Floor Leader Dan Kelly were among these seven. Roeding was even able to get two Senators, Johnson and Pendleton, to change from no to yea. The Senate was able to override the veto 26-8. The House voted 82-16 to override the veto. On July 15, 2000, HB 70 will become law.
After a long and difficult battle, Representative Kerr won. Statute no longer will force religious groups like the NKBA to allow others to use its property in a manner inconsistent with its religious tenets. While Kerr's intent was very good, he, nor did the NKBA, intended the bill to be used as a tool for discrimination. Kerr redrafted the language many times to clarify the bill's intent. He added language to prevent hate groups from abusing the privileges granted to religious organizations. Redrafting is often a key element for passage of legislation. This was perhaps the most important reason HB 70 won passage. While it was obvious that certain legislators would not be satisfied with the bill regardless of language, many liked the idea of the bill and simply wanted a few changes. The final version was the version that satisfied the most legislators. While the final bill was very different from the original, it accomplished its original objective.
Interest groups often drive the changing of legislation. These include professionals like the ACLU and the Fairness Coalition, but also include many citizen lobbyists. Citizens were the key reason the Senate overturned the Governor's veto. When the newspapers reported the Governor's veto, several people phoned their Senator and Representative urging them to override the veto. The Human Rights Commission also changed the direction of the legislation dramatically. While the Commission opposed the bill's intent as well as its language, it still worked closely with Kerr to change it. Because the Commission was certain it would pass in some form, it helped make it less problematic. Most religious legislation is susceptible to legal challenges. HB 70 is no different. Edwin Kagin, leader of Camp Quest and former candidate for Kentucky Supreme Court Justice, is likely to challenge the law in court. While he has not stated that he will file a lawsuit, he has vowed to "do something about it." [14]
It is likely that Kerr's battle to increase religious liberty is not over. One could sue on many grounds. The First and Fourteenth Amendment could provide a challenge to HB 70; however, it is likely that one will make the case that HB 70 violates section five of the Kentucky Constitution. Section five states that No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity...and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching... [15]
Clearly, HB 70 violates section five of the Kentucky Constitution. For this reason, it is clear that the battle over HB 70 is not quite complete. Regardless of what occurs in the future, HB 70 is a bill that has traveled through the entire process. It began as an idea stemming from an incident, and grew to be one of the most controversial bills of the 2000 session of the Kentucky General Assembly.
Citation references [1] to [15] are not contained in this web version.