Two justices of the Kansas Supreme Court recently announced their retirements, and well-established constitutional procedures are now underway to fill those vacancies.

In a desperate, preemptive strike anti-abortion activists interjected themselves into the selection process and declared two candidates under consideration ideologically unfit to fill a position on the Kansas Supreme Court.

Kansans should be assured, however, that this political dustup will not derail the constitutionally mandated process. For now, three candidates, including one of the targeted candidates, Chief Judge Evelyn Wilson of the Shawnee County District Court, have been properly screened, found to be qualified, and forwarded to Gov. Laura Kelly who must select one for final appointment to the Court.

The unusual, last-minute gambit comes as little surprise as abortion opponents have in recent years had their way with state lawmakers, specifically former Gov. Sam Brownback and Republican legislative majorities, in enacting numerous measures that restrict access to abortion.

However, these activists have tried but failed to bend the Kansas Supreme Court to their will. They have been blocked by the Kansas Constitution, which establishes an independent judiciary and prescribes that “qualifications” not politics should determine who sits on the state’s highest court.

Over 60 years ago Kansas voters overwhelmingly adopted a constitutional amendment designed to reinforce judicial independence and remove partisan political considerations from the selection of justices to the Kansas Supreme Court. That constitutional language provides for a “non-partisan” Supreme Court Nominating Commission to screen candidates and nominate “three persons possessing the qualifications of office” to the governor for consideration and appointment of one of those to the Court. Once appointed, each Supreme Court justice periodically stands before voters in a statewide retention election to determine whether the justice should be retained on the Court.

This constitutional procedure, often termed “merit selection,” has repeatedly been embraced by Kansas voters. Each of the 25 justices appointed based on qualifications has stood for retention on one or more occasions and been retained by voters. Each of the nine Kansas governors elected in this period—five Republicans and four Democrats—has appointed at least one justice to the Court.

These constitutional safeguards stand in the way of anti-abortion activists and their desire to realign the Kansas judiciary more to their political liking. Kansans for Life and its allies have sought to undo these provisions and have mounted repeated attacks on the Court. They have advocated abandoning merit selection of justices, conducted postcard campaigns to oust justices in retention elections, cheered lawmakers threatening the Court with budget cuts and impeachment, and now have tried to blackball prospective Court candidates. These actions have garnered headlines but to date have not altered the Court’s independence.

Earlier this year the Kansas Supreme Court ruled that the Bill of Rights in the state constitution guarantees each Kansan “personal autonomy” which includes “the ability to control one’s own body” and allows a woman to determine “whether to continue a pregnancy.” The Court’s decision potentially jeopardizes recently enacted abortion restrictions and gives new urgency to anti-abortion interests that seek to control the Court.

Kansans should rest assured that for now the selection of new justices for the Supreme Court will proceed steadily on the basis of merit. They should remain vigilant, however, as special interests such as abortion opponents make another push to politicize the Court and threaten the independence of the state’s judicial branch.

H. Edward Flentje is emeritus professor at Wichita State University and served with former Kansas Governors Bennett and Hayden.

By EDWARD CROSS
Kansas Independent Oil & Gas Association

Energy is so thoroughly woven into our daily lives that few ever question whether it will be there, or where it comes from. Oil-based products are likely the first thing you touch at the beginning and end of each day, whether it is your alarm clock, cellphone, or even the toothpaste and toothbrush you use to brush your teeth. As a key component in heart valves, seat belts, helmets, life vests, and even Kevlar, petroleum is saving tens of thousands of lives daily. Furthermore, oil and gas are key components in many medicines and antibiotics such as antiseptics, antihistamines, aspirin, and sulfa drugs.

The oil and gas industry has done such a good job of creating abundant, affordable, always-available energy that the world takes it for granted. Because energy is so reliable and available, some think we no longer require it. We encounter this paradox anytime we hear from those who want to end oil and gas production but still want to benefit from oil and gas based materials and fuels.

What Americans expect and deserve are the facts. And the fact is, recent history has disproved the false premise that economic growth and significant increases in energy production must, necessarily, come at the expense of environmental improvement.

Today, the U.S. is not only the world leader in energy production, but we have some of the cleanest air in the world. From 1970-2017, the six major pollutants monitored by the Environmental Protection Agency (EPA) have plunged 73%, while the U.S. economy grew by 60%. EPA Data also shows that from 2011 to 2017, methane emissions from oil and natural gas production in the U.S. decreased by 24%. The oil and natural gas industry has proven that over the long-term, we can lead the world in energy production and environmental stewardship.

What would it mean for consumers, the economy, and future job creation if we substantially limited exploration, development, and use of fossil fuels in America’s energy supply mix? A recent study by the Energy Information Administration indicates the average American family would see their energy costs increase by $4,550 per year. It could mean a cumulative loss of $11.8 trillion in the nation’s GDP and the loss of 6 million jobs. Recent studies indicate that if the U.S. eliminated all CO2 emissions immediately, it would avert 0.07 degrees of warming by 2050. If Kansas alone eliminated all CO2 emissions, it would avert 0.001 degrees of warming by 2050. How many lost jobs is that worth?

The U.S. has a unique opportunity to show the world how energy abundance can be used as a positive force to lift people up, which is different than a zero-emissions world. We should work to ensure more people have access to safe, affordable, and reliable energy. Because to rise out of poverty and enjoy health and safety, people need more energy, not less.

We should set aside the acrimony and division that has marked too much of past energy policy discussions and work together as one nation on a positive forward-looking energy future based on the understanding that our nation’s best energy future can only be achieved through a true all-of-the-above energy strategy.

Edward Cross is president of the Kansas Independent Oil & Gas Association.

By RICHARD T. FOLTIN
Freedom Forum Institute

A proposed rule issued by the Office of Federal Contractor Compliance Programs (OFCCP) of the U.S. Department of Labor, slated soon to be issued in its final form, has been billed by the administration as an enhancement of religious freedom. But, in fact, the rule would diminish protections of employees’ religious freedom and civil rights.

On Sept. 24, 1965, building on actions taken by previous chief executives, President Lyndon B. Johnson signed Executive Order (EO) 11246, which established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. As subsequently amended, the order prohibits discrimination by federal contractors based on race, color, religion, sex, sexual orientation, gender identity or national origin. OFCCP is the agency responsible for assuring that federal contractors comply with these non-discrimination obligations.

In December 2002, President George W. Bush amended EO 11246 to allow an exemption for contracting religious organizations that permits them to discriminate “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.” This latter language closely tracks the religious exemption provision of Title VII of the Civil Rights Act of 1964 (the section of the Civil Rights Act dealing with employment discrimination). And, following the fashion in which Title VII has been applied, the exemption does not excuse contractors from complying with the other requirements of EO 11246, even on the basis of religious belief.

Adoption of the Bush amendment was not without controversy. Rather, it raised concerns over whether or not faith-based organizations that are awarded government contracts should be allowed to engage in religious discrimination, notwithstanding that these organizations would otherwise have the benefit of Title VII’s religious exemption. In contrast, proponents of the amendment maintained that the need to protect the autonomy of religious organizations with Title VII religious exemptions isn’t diminished simply because those organizations are government contractors.

At first glance, debate over the Bush amendment parallels debate over whether or not faith-based organizations that receive government grants to provide social services should have the benefit of religious exemptions from anti-employment discrimination provisions covering those grants. That parallel between federal contractors and grantees is complicated, however, by two key differences between government contracts and government grants, each of which alters the calculation in a different direction. On the one hand, the contractual relationship is more likely to be ongoing and intertwined with government in contrast to what may be a one-off grant, leading to the conclusion that it is more problematic to provide religious contractors with religious exemptions. On the other hand, the provisions of EO 11246 have more sweeping implications for religious contractors in that the executive order’s antidiscrimination provisions apply to the entire organization, not just, as is the case with many grants, the project for which funding is provided.

Whatever the merits of the underlying Bush amendment, the proposed rule constitutes a broad and ill-advised expansion — in the name of protecting religious freedom “to the maximum extent permitted” — of the fashion in which the Bush amendment has been applied[1]:

• The proposed rule cannot actually change EO 11246; that would require another executive order. So in theory, workers remain entitled to the full protections EO 11246 provides (i.e., even an employer entitled to invoke the religious exemption cannot, by claiming a religious basis for doing so, engage in discrimination directed at members of another protected category). Nevertheless, through the manner in which it expands the scope and availability of the religious exemption, the proposed rule raises real questions regarding the extent to which employees of federal contractors will be adequately protected from religious discrimination, as well as from other forms of discrimination, most notably when discrimination is directed at LGBTQ people. The proposed rule is, in essence, an initiative about protecting the prerogatives of employers at the expense of employees;
• The term “religious corporation, association, educational institution or society” is newly defined to encompass significantly more employers than under Title VII case law or the current EO 11246 — notwithstanding that OFCCP acknowledges that the religious exemption in EO 11246 should be understood to have the same meaning as in Title VII. Under the proposed rule, federal contractors would be able to invoke the exemption so long as they can pinpoint a religious purpose that is a public part of their mission and demonstrate that they engage in religious exercise to further that purpose. This interpretation, which allows for-profit corporations and nominally religious entities to claim the religious exemption, is without basis in Title VII case law, sends the wrong message to employers and may put employers at risk of civil rights lawsuits under federal and state law, even as they retain their status as federal contractors;
• Even as the proposed rule purports to interpret EO 11246’s limitation of the religious exemption to allow a newly broadened category of organizations to prefer members of a particular faith, it adopts a more lenient standard for evaluating whether or not a claim of employment discrimination is based on religion or on another protected category. This makes it more difficult for employees to challenge discrimination on the grounds that religion has been used as a pretext for discrimination on other bases. Further, by incorporating a test that is more lenient for employers, the proposed rule signals to employers that so long as they can articulate what looks like a legitimate non-discriminatory basis for an otherwise discriminatory decision, they will be able to retain their federal contracts — a situation with particularly dire implications for LGBTQ people;
• The proposed rule misappropriates the Title VII definition of “religion,” intended to protect workers against religious discrimination, enabling companies to discriminate against employees. Title VII defines religion broadly to protect both the beliefs and practices of employees and to require employers to provide religious accommodations. Unfortunately, and perversely, the proposed rule would use this definition of religion to protect employers, not their workers, by granting a wide range of employers who contract with the federal government broad authority to engage in discriminatory practices on the basis of religion against their employees. In one notable case, an employer was found to have violated Title VII when it required its employees to attend prayer services over their objections. Because it would allow for-profit or nominally religious employers to make employment decisions on the basis of religion, the proposed rule could open the door for employers to require employees to participate in such prayer services or Bible studies, i.e., the religious practice of the employer. At the least, the proposed rule would set up a conflict as to the applicable law on this issue;
• The proposed rule relies on an exaggerated claim that OFCCP cannot even inquire about whether or not an employer’s assertion that it has made an employment decision on the basis of religion was instead an act of discrimination on the basis of race, color, national origin or sex, including sexual orientation or gender identity. While the government must avoid taking sides on questions of religious doctrine, it is not prohibited from deciding what is and is not “religion” for purposes of deciding when religious freedom protections come into play. The proposed rule’s approach undermines the very structure of the protections of religious freedom that are part of the Constitution and federal and state statutes.

In sum, OFCCP’s proposed rule’s harmful and unnecessary expansion of the existing religious exemption for employers endangers the religious freedom and civil rights of employees across the nation. Hopefully, OFCCP will take heed of the many comments urging that it reject the proposal.

[1] The following points draw on comments filed by the American Bar Association (ABA), opposing adoption of the proposed rule. The ABA was one of thousands of organizations and individuals to weigh in, pro and con. The author played a role in drafting the ABA’s comments.

Richard T. Foltin is a senior scholar of the Religious Freedom Center of the Freedom Forum Institute. Contact him via email at [email protected], or follow him on Twitter at @rfoltin.

How much did the spring and summer’s weather affect the feed value of your hay?  You don’t know?  Then forage test.

Nearly every bushel of corn has similar nutrient concentration, but with hay it varies considerably.  Why does this happen?  Well, there are many causes.  For example, leafiness of the hay, or maturity of the plant when your hay was cut, or even how you handled the hay during raking and baling all can affect its feed value.

This year, weather conditions have made things more complicated.  This spring’s floods and cool, wet weather caused many folks to delay first cutting or got rain-damaged hay.  Leaf diseases, mature plants, and other factors made much alfalfa lower in quality.  During summer, we had periods of hot and very humid weather that often caused plants to burn off their easily digested nutrients at night, leaving us with hay that looks really good but is high in fiber and low in energy.

Grass hay might be even more difficult to predict.  Some fields had fewer seedheads than normal.  This might give higher quality hay, but if harvest was delayed in hopes of increasing yield or if the heat affected grass quality like it affects alfalfa, grass hay quality might actually be lower.  And when growth is stimulated by extra rain, plants use many nutrients for increased tonnage instead of quality.

And I haven’t even mentioned all the different forages used on prevented planting acres.  Different species harvested late in the year; who knows what the protein and TDN levels are like.
So you see, this year, just like always, forage testing is important.  It is the only way that you can find out for sure ahead of time what the feed value is of your hay.

So gather samples now for testing, before feeding your animals and before it’s too late.

If you have any questions, or would like more information, you can contact me by calling 620-793-1910, by email at [email protected] or just drop by the office located at 1800 12th street in Great Bend.

Alicia Boor is one of the Agriculture and Natural Resources agents for the Cottonwood District, which includes Barton and Ellis counties.