Josie Weiland isn't the only South Dakota expressing disgust with the bullying, anti-civil rights Senate Bill 128. Also expressing outrage at SB 128 is Josie's uncle, Rick Weiland, who happens to be running for Senate. Here's what Uncle Rick says in this morning's press release: is what I said to a joint Caucus of my party at our State Capitol just after learning of this latter day Jim Crow legislation.

"As a candidate for Federal office I normally would not weigh in on a bill in front of our State Legislature, but SB 128 is so offensive, so extreme, so potentially damaging to our state, and to every person in it, that it must be opposed."

If you are gay or lesbian, and you walk into a business run by someone who objects to your sexual orientation, you will be refused service if this bill is enacted.

Substitute the words 'gender' or 'race' for the words, 'sexual orientation,' and a bill otherwise identical to this one would legalize discrimination against African Americans, Native Americans and women [Rick Weiland, press release, 2014.02.03].

Just as outrageous as SB 128 itself is the silence of Weiland's Senate campaign opponents on this effort to cloak rank discrimination and bigotry in Christian faith:

Incredibly, at least two of my five Republican opponents for South Dakota's United States Senate seat support this terrible legislation, and the other three, as of this writing, have made no comment about it despite my specific public request that they do so [Weiland, 2014.02.03].

Josie, if your friends are mad about Senate Bill 128, you'd better tell them to get down to the courthouse, register to vote, and come out in November to vote for your uncle Rick and all the other Democrats who will defend everyone's civil rights.


Senator Ernie R-Otten withdrew his anti-civil rights Senate Bill 67 under the interpretation that South Dakota law already allows discrimination against same-sex couples. Senator Otten's position hinges on how we read SDCL 20-13-1, the definitions of our state civil rights code:

(16) "Unfair or discriminatory practice," any act or attempted act which because of race, color, creed, religion, sex, ancestry, disability, or national origin accords unequal treatment or separation or segregation of any person, or denies, prevents, limits, or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit or enjoyment by any person of employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services.

SDCL 20-13-1 mentions sex, but not sexual orientation. Does that mean South Dakota employers can refuse to hire homosexuals?

The U.S. Equal Employment Opportunity Commission says no:

The EEOC has held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is covered under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that claims by lesbian, gay, and bisexual individuals alleging sex-stereotyping state a sex discrimination claim under Title VII. See Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011); Castello v. U.S. Postal Service, EEOC Request No. 0520110649 (Dec. 20, 2011) [EEOC, "Facts about Discrimination in Federal Government Employment Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status," downloaded 2014.01.31].

Executive Order 13087 from 1998 added "sexual orientation" to Executive Order 11478 from 1969 (Clinton and Nixon—liberals!) on equal employment opportunity in the feederal government. But EEOC's interpretation of "sex" includes "sexual orientiation," suggesting precedent under which a South Dakotan of something other than heterosexuality could press a workplace discrimination case against a boss who fires her/him for holding hands with someone other than whom God intended (sorry: I'm trying to think like Ernie Otten).

That interpretation and executive order are among the federal rules against which Senator Phil Jensen's Senate Bill 128 rebels. Read the second paragraph of Section 2:

No private business may be compelled to employ a person based on sexual orientation. The Legislature finds that any federal recognition of any specific sexual orientation as a protected class does not apply in South Dakota and may not be enforced within the geographical boundaries of South Dakota.

Note that the wording of Senate Bill 128 does open the door for gay bosses to fire straight workers just for being straight. Do you really want to go there, Senator Jensen?

But the EEOC's interpretation of "sex" to include "sexual orientation" raises an important legal question: even if we want South Dakota to be America's homophobe mecca, do we need Senate Bill 128 to practice what the "Fear the Gay!" caucus of the South Dakota Legislature preaches? Does South Dakota civil rights law already exclude sexual orientation from protection, or does the EEOC interpretation of "sex" provide our GLBT neighbors the equal status they deserve?


I just want to celebrate with Senator Angie Buhl O'Donnell and the South Dakota Democrats, who joyfully announce that vile, discriminatory, and unconstitutional Senate Bill 67 is dead!

But I can't. Prime sponsor Senator Ernie Otten (R-6/Tea) withdrew the bill yesterday, but not because of the 4,000-some folks who quickly signed an SDDP petition calling for its defeat. Senator Otten did not suddenly recognize businesses cannot discriminate against lesbian or Lakota customers based on the business owners' professed religious beliefs.

Senator Otten withdrew SB 67 because he thinks such discrimination is already legal:

Sen. Ernie Otten, R-Tea, said it was that legal advice that led him to withdraw the bill.

"I’ve been checking with lawyers… to make sure it was in good standing," Otten said. "I found out we already had protections in for the folks" [David Montgomery, "One Refusal-of-Service Bill Withdrawn," Political Smokeout, 2014.01.29].

I'm listening to Senator Otten testify right now before Senate Judiciary in support of his other current anti-homosexual grandstand, Senate Bill 66, which redundantly asserts the right of pastors to decline to solemnize a same-sex marriage. He is steeped in the language of fear, claiming intolerant extremists are waging war against religion, seeking an America in which he cannot worship as he sees fit. Senator Otten has gotten his bills exactly backwards. The protections of pastors Senate Bill 66 seeks are already available; Senate Bill 67 is (was) outright discrimination. Its proposed protections are not currently legal.

But the motivations of both are vile and deserve our vigorous opposition in defense of the Constitution and equality.


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