Senate Bill 128 just died in the Senate Judiciary Committee, for most of the right reasons.
SB 128 is the anti-gay legislation proposed by Senator Phil Jensen (R-33/Rapid City) to protect businesses from lawsuits over discrimination against gay, lesbian, and other non-heterosexual customers and employees. In his testimony this morning, Senator Jensen repeated his absurd claim that SB 128 is an anti-bullying measure. He said his bill would actually protect homosexuals' right to say what they want about heterosexuality... though I must interrupt and ask all of you to cite the last time your heard a homosexual say that his religion tells him that heterosexuality is a sin.
The only other proponent of SB 128 was Mark Chase, president of the South Dakota Family Policy Council. Chase did not make clear what aspect of family life is threatened by homosexuals participating freely in commerce. Chase said SB 128 stood to protect his freedom of worship, but he did not explain how refusing to do business with a homosexual is an act of worship.
When asked by a committee member if SB 128 would allow a pharmacy to refuse to fill a prescription for a gay customer, even if that pharmacy is the only one in town, Chase mentioned the oft-cited bakery-wedding-cake cases and asserted that SB 128 doesn't necessarily apply to restaurants and pharmacies. This assertion is false: SB 128 refers to private businesses, without qualification. Restaurants and pharmacies are private businesses. Chase was unwilling to own the full practical consequences of this discriminatory bill.
SB 128 drew more opponent testimony than proponent testimony. Tom Barnett from the state bar association testified that SB 128 is unnecessary to the gay-hating goals of its sponsors, since sexual orientation already lacks status as a protected class under South Dakota law. Barnett said Section 3 of SB 128, directing judges to dismiss any lawsuits brought on grounds of discrimination against sexual orientation and levy fines against any such plaintiffs, is facially unconstitutional, as the Legislature cannot tell the courts how to rule on cases any more than the courts can tell legislators how to vote on bills.
Lawrence Novotny of Equality SD noted with disapproval that SB 128 would allow gay bosses to fire straight employees because of their sexual orientation. He cited numerous South Dakota employers—Sanford, Morrells, Starmark, Larson, Poet, Gehl, Falcon, and the Board of Regents—that ban discrimination against gays in their workplaces and who might not take kindly to a state law that creates a discriminatory environment for its workers around town.
Novotny's Brookings neighbor Madison Vanduch called SB 128 a return to Jim Crow laws. In a sharp constitutional turn, the Brookings HS student said the bill would take away constitutional rights to a fair trial.
Teri Carlson, regional director for PFLAG, said she just wants her two sons, one gay, one straight, to have the same access to housing, insurance, tax services, and dining out. She said SB 128 would make South Dakota more like Russia, Uganda, or Nigeria. She said SB 128 made South Dakota sound like virulently anti-gay pastor Fred Phelps.
Senator Jensen responded to Carlson's testimony by saying he grew up in Wichita, is familiar with Phelps, and takes offense at anyone bringing up Phelps. But gee, Phil, if the shoe fits.... Besides, your personal umbrage does nothing to refute the fact that SB 128 would empower followers of Phelps to impose his anti-gay agenda in the marketplace and the workplace.
Senator Jensen alleged that the real problem is that homosexuals want "standing ovations" for their lifestyle.
Gretchen Stanley of Spectrum, the LGBTQ advocacy group at the University of South Dakota, didn't ask for any standing ovation. She testified that she just wants to be able to go out for spaghetti with her date on Tuesday all-you-can-eat night. She just wants her gay friend to be able to buy flowers for his soldier husband.
Senators Tim Begalka (R-4/Clear Lake) and Jeff Monroe (R-24/Pierre) both said that they would not discriminate against homosexuals in their businesses. They said SB 128 was just about protecting businesses against lawsuits.
Senator Mark Kirkeby (R-35/Rapid City) felt otherwise. He called SB 128 a "mean, nasty, hateful, vindictive bill." He implied that he has no tolerance for people who think their religion is superior to others.
Senator Jean Hunhoff (R18/Yankton) said SB 128 was driven by fear, on the idea that we have to protect ourselves from certain people. She asked a profound question for all Christians: as a faith-based person, why should she live in fear of anyone? She said Senate Bill 128 appalled her and made the motion to defer it to the 41st day. Senators Kirkeby, Bradford, Vehle, and Tieszen obliged. Senators Begalka and Monroe opposed that motion.
Senate Bill 128 is now properly dead. But as was stated throughout the hearing, sexual orientation is still not a protected class. Shop owners can make a strong legal case for hanging a "No Gays" sign in their windows. Defenders of equality and human decency still have work to do in South Dakota.