Kansas And South Dakota Consider ‘Licenses To Discriminate’ Against Same-Sex Couples

With court decisions knocking down the same-sex marriage bans in Utah and Oklahoma, other states with bans are considering more creative ways of making sure marriage equality isn’t recognized. Both Kansas and South Dakota have proposed bills that would create a blanket “license to discriminate,” inviting anyone in the respective state to use religious beliefs as a legitimate reason to refuse service to same-sex couples.

In South Dakota, Senate Bill 67 would allow businesses and individuals to ignore any marriage that they simply don’t agree with:

No person or any personal business may be required to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage, or treat any marriage as valid for any purpose if such action would cause any such person or personal business to violate the person’s sincerely held religious beliefs.

Though the language seems to focus on wedding ceremonies, the last phrase, “or treat any marriage as valid for any purpose,” suggests that this legislation would allow any business to discriminate against any married couple for any purpose. Notably, the bill does not specify “same-sex” anywhere, thus it could conceivably also be used to discriminate against any kind of marriage, including interfaith and interracial couples.


Kansas’ proposed legislation, House Bill 2453, offers a a more specific outline for the various forms of discrimination that would be protected. For example, in the definition of “religious identity,” it includes any “privately-held business operating consistently with its sincerely held religious beliefs.” Its list of services that could be denied is a quite a bit longer:

Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:

(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;

(b) solemnize any marriage, domestic partnership, civil union or similar arrangement; or

(c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.

Both bills also protect any would-be discriminators from any legal claim or government retribution. This would protect the government funding for adoption agencies, for example, that refuse to place children with same-sex couples.


The efforts in South Dakota and Kansas mirror similar legislation introduced at the federal level. Rep. Raúl Labrador (R-ID) proposed the so-called “Marriage and Religious Freedom Act” (MRFA) last year, which would establish a license to discriminate against same-sex couples across the entire country. Sen. Mike Lee (R-UT) subsequently introduced a Senate version of the bill as well. Because of the legislation’s protections for individuals, it would allow employees of the tax bureau, for example, to refuse to process a same-sex couple’s joint filing, even if the filing is legally valid.

Though the federal MRFA seems unlikely to pass, these state bills show some potential. A similar bill proposed in Arizona, Senate Bill 1062, advanced out of committee.