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Senate Judiciary Kills SB 128; Gays Want Spaghetti, Not Standing Ovations

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.


  1. D Basel 2014.02.18

    Why didn't the committee have the courage to outright kill the bill? Not just defer it.

  2. Becca Pivonka 2014.02.18

    Nice to see a little common sense has snuck its way into the SoDak legislature

  3. Becca Pivonka 2014.02.18

    Probably because if they outright killed it, they would be seen as being "weak" by the tea party

  4. Nick Nemec 2014.02.18

    A deferral to the non-existent 41st day in committee is about as dead as a bill gets in the South Dakota Legislature.

  5. mike from iowa 2014.02.18

    If they come right out and tell you they represent "family values",they don't. Sen Hunhoff-you are right to be afraid of some people-the ones that claim an inalienable right to carry a destructive arsenal on their person,where ever they go. You can find irresponsible gun owners every day of the week,accidently discharging their weapons into people and places unnamed. Cyberspace is full of "accidents".

  6. Flipper 2014.02.18

    Don't worry bigotry and discrimination fans! Something similar will be back next year. As long as South Dakotans continue to send these Neanderthals (uh oh, I believe in evolution) back to Pierre, this kind of bill will return.

  7. Bob Klein 2014.02.18

    Madison's last name is Vanduch.

  8. Porter Lansing 2014.02.18

    On to important legislation...making it legal for printing shops to refuse someone who wants PRO-LIFE posters printed. There's some "prairie values" for 'ya.

  9. caheidelberger Post author | 2014.02.18

    Thanks, Bob! Correction made above!

  10. caheidelberger Post author | 2014.02.18

    I'll be on the headphones for that one, Nick! We'll see if the same players show to testify.

  11. Flipper 2014.02.18

    Geeez. Thanks Nick. "The Gays" and women's body parts. It never ends...

  12. Jana 2014.02.18

    Good call Flipper. Unfortunately there's one for tomorrow, but there's always next year.

    More unfortunately we don't send representatives to Pierre to represent us as we like to think. They answer to higher authorities than the citizens of SD. The crap that was SB128 was written by someone and then franchised out to nut jobs in many states. This scene is being played out all over.

    I think Mr. Jensen owes the people of South Dakota full disclosure as to who wrote the legislation and who he is working for. I do believe Mr. Barnett brought this up in his testimony.

  13. Roger Cornelius 2014.02.18

    The good news is that we won this battle, the sad news is that we will forever fight to win the war on equality.

  14. Roger Elgersma 2014.02.18

    Was someone afraid that homosexuals would not be able to buy contraceptives.

  15. Roger Cornelius 2014.02.18

    These "family values" Republicans are just plain ignorant!

    Do they not know that the LGBT community have families and likely share the same family values as the anti-gay crowd?

    Family values are just that, family values and they include all families.

  16. Deb Geelsdottir 2014.02.18

    Roger, that was pretty clever. Made me laugh. Thanks.

  17. Rachel 2014.02.18

    Someone wrote on FB yesterday that unless you are a straight, Christian, white male, SD is a terrifying place to live. I am sorry to say I have to agree.

  18. caheidelberger Post author | 2014.02.18

    Indeed, Jana, Mr. Barnett's allusion to the out-state authors of this legislation was tantalizing; I wish he'd connected the dots for us civilians.

    Rachel, I'm 3 out of 4: I'm fortunate to experience just mild disturbance, not terror.

  19. mike from iowa 2014.02.18

    OMG Cory,you're not a male?

  20. Deb Geelsdottir 2014.02.18

    Funny, Mike!

  21. Anne Beal 2014.02.18

    I would like to know who the business owners are who don't want gay money. Just who and where are these people? Are we sure they exist?

  22. caheidelberger Post author | 2014.02.18

    Hee hee, Mike! Anyone who mistakes me for Christian isn't paying attention.

    Anne, South Dakota business owners surely wouldn't turn down "gay money." They're so desperate for economic development, they'll do anything for a buck: hog CAFOs, mega-dairies, giant beef plants, uranium mines....

  23. owen reitzel 2014.02.18

    The way Sen. Van Gerpen explained it (and he was for SB128) was that in Colorado the gays knew which businesses would not sell to them. So they tried to do busniess with them and when the businesses refused to sell to them they took the businesses to court. They want to stop that from happening here.

  24. Jana 2014.02.18

    Listened to the committee hearing on gun rights sponsored by Campbell. Ann Hajek grilled him on who crafted the bill as well as the out of state proponent of either secession or nullification...let's say that they weren't exactly forthcoming and very uncomfortable about who authored the bill.

    Way to go Ann! You had him on the ropes on a lie, got him to back off and then left him with some semblance of dignity...almost wish you would have grilled him harder for embarrassing South Dakota. Thank you Ann.

    What is it with the Issac, Jensen, Campbell, Wick, Steele, Begalka, et. al. outsourcing our governance? These people need to come clean on who is pulling their strings and who they are representing.

    Mr. Campbell has admitted it is the 8000 members of Gun Owners of America who crafted his piece...albeit very reluctantly.

    Mr. Jensen and the other conspirators of SB128 bravely ran away from who wrote their sponsored law to govern SD. Maybe the family policy people can tell us who we outsourced this legislation to...can't imagine a man who loves a gay man and is a minister like Mr. Chase would lie to us.

  25. Deb Geelsdottir 2014.02.18

    I have doubt's about Gerpen's story re- LBTG folks in CO. It would be good to have a source for that, rather than only an off-the-cuff comment.

  26. Roger Cornelius 2014.02.18

    Owen and Deb,

    Even if gays stalked the bakery like Gerpen suggests in hopes of a Civil Rights violation, the case served a purpose. Apparently the baker had a reputation for discrimination and this was an excellent way to call him out.

    Stalking businesses that discriminate and than suing them is necessary to the cause. Like Anne Beal asked, who are these businesses, the public needs to know.

  27. Merlyn Schutterle 2014.02.18

    Businesses are one thing, but religions are another. I am not a religious person, but I don't think pastors should have to marry anybody whose behaviors are contrary to their doctrine. Am I wrong about that?

  28. Flipper 2014.02.18

    Merlyn, gay marriage is already illegal in South Dakota. No reason for this bill. Just another way to say "the gays are bad".

  29. Roger Cornelius 2014.02.18


    SB128 was not about preachers choosing not to perform same sex marriage or any other marriage they don't like.

    It was about the LGBT having the right to sue when they are discriminated against.

  30. Flipper 2014.02.18

    Correct Roger. I was referring to the other bill pertaining to clergy. I should have made that more clear. I thought that was what Merlyn was doing too.

  31. Stickler 2014.02.19


    Most South Dakotans are getting tired of this type of thinly-veiled hate-filled legislation (HB128 and 1251) to combat non- existent problems. There are no gays demanding to be married In SD by preachers who don't want to perform their ceremonies. (If you know otherwise, please name one pastor who says this actually happened.) SD gays who want to marry go to one of the growing number of neighboring or more distant states that legally recognize gay marriage.

  32. caheidelberger Post author | 2014.02.19

    It sounds as if certain pastors and business people and legislators are so fearful of being forced to do something by GLBT neighbors that they are suffering "gay panic."

    Merlyn, as the husband of a pastor-in-training, I completely support the right of a pastor to decline to perform religious services for folks who don't satisfy the basic requirements of the church. I totally support my wife's right not to give me or any other pagan a communion wafer. But if you're selling wafers at a bakery, you don't get to pick and choose your customer based on your religious beliefs.

  33. Deb Geelsdottir 2014.02.19

    As a Lutheran pastor, I can tell you that I cannot be forced to offer any of the church's services to anyone. That includes communion, baptism, marriage, etc. My congregation can fire me if they want to, or church leadership can defrock me, but civil law cannot touch me. That's one of the benefits of the separation of church and state.

    BTW, some denominations give a congregation very little input regarding their pastors.

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