Read House Bill 1220, and you might think you're just reading a redundant, mostly harmless restatement of freedom of religion. Representative and Pastor (red flag) Scott Craig (R-33/Rapid City) and a bunch of other conservative Republicans (warning) wrap some definitions and legalese around the basic idea that "No state action may burden a person's right to exercise of religion" unless there is some compelling state interest. That, and you can't punch anyone for Jesus or have two wives. First Amendment already has that covered, right? Rep. Craig and friends are just posing for the cameras, right?

Oh no. Huffington Post says HB 1220 is part of an intensifying conservative campaign against LGBT Americans:

...[R]eligious freedom regulations are not new, and the federal Religious Freedom Restoration Act (RFRA) already says that the government cannot substantially limit a person's religious freedom unless it can prove a "compelling government interest." But some of the new state language could go beyond that law.

Lawmakers in Indiana, West Virginia, Arkansas, South Dakota and Oklahoma are all pushing bills that could have the same effect as a controversial Arizona bill that was vetoed last year by a Republican governor. These bills allow any individual or corporation to cite religion when defending against a private party. For example, a recent ACLU complaint alleged that a Denny's restaurant in New Mexico refused to serve a pride group, calling the customers homophobic slurs. Under this sort of legislation, it's possible that the restaurant could cite religion as a defense if the case made it to court [Dana Liebelson, "Inside the Last-Ditch Conservative Campaign to Target LGBT Americans," Huffington Post, 2015.02.04].

Yup: Rep. Craig is taking us right back to last year's attempt to protect fervent Christians from "the bullying of anti-straight folks." Senator Phil Jensen's bill on this topic last year was too blatant, mentioning sexual orientation specifically. This year's effort to legalize discrimination under the guise of piety (and yes, Senator Jensen is a co-sponsor) buries its intent in more general language.

HB 1220 offers cross-wearing bigots this litigatory club:

Section 3. A person whose exercise of religion has been burdened, or is likely to be burdened, in violation of this Act may assert the violation or impending violation as a claim or defense in a judicial proceeding, regardless of whether the State of South Dakota or one of its political subdivisions is a party to the proceeding. The person asserting the claim or defense may obtain appropriate relief, including relief against the state or its political subdivisions. Appropriate relief includes injunctive relief, declaratory relief, compensatory damages, and costs and attorneys fees [House Bill 1220, posted 2015.02.03].

Under HB 1220, if a gay couple goes to the Sioux Falls Original House of Pancakes to celebrate their engagement, and if the devout manager refuses to serve them because God will smite OHP down for facilitating a celebration of sin, and if the gay couple sues for discrimination in a public accommodation, OHP can sue right back for religious oppression.

Permit the atheist in the blogosphere to remind the Christians in the room of some basic theology: if you run a business and refuse to serve sinners, you won't have any business.

HB 1220 could go further: it could peel away anti-bullying rules at school. Thugs could yell homophobic slurs at other children and tell their victims they're going to hell. If the picked-on kids complain and the principal calls Mom and Dad, the bullies' parents can simply say their children were simply expressing their religious belief that homosexuality is a terrible sin. HB 1220 knocks the legal legs out from under the conscientious principal's duty to protect children from such harassment.

Be on alert, friends of equality: HB 1220 is another effort from South Dakota's Religious Right to carve for themselves the right to oppress others with what what they profess to be faith.

22 comments

Equality South Dakota is hosting a Legislative Day in Pierre on January 29 to talk up the equality and civil rights for South Dakota's LGBT citizens. The Family Heritage Alliance will come to Capitol the following week on February 5 to knock those notions right back out of legislators' heads with good God-fearing goobledygook straight from an expert reality-TV star!

Family Heritage Alliance postcard, front, submitted by an anxious reader

Family Heritage Alliance postcard, front, submitted by an anxious reader

Family Heritage Alliance postcard, back, submitted by an anxious reader

Family Heritage Alliance postcard, back, submitted by an anxious reader

Yes, the Family Heritage Alliance, defending South Dakota against the Republic-damning and child-damaging godlessness of constitutional same-sex marriage ("every child deserves a mother and a father," a correspondent tells me was the big line at the FHA luncheon yesterday, showing that FHA believes non-matching gonads are more important than love), will rally the troops in Pierre (with free bus rides from Sioux Falls and Rapid City!) to hear from Josh Duggar, whose only claim to fame and authority is being a child from a large family chosen to be on television.

That, and affirming stodgy white folks' belief that homosexuals are out to get them. And exaggerating... which is all "reality" TV is.

The event could be fun: wear your rainbow lapel pins, go hear what our pious FHA friends have to say... and hold hands with a friend while listening.

298 comments

Federal Judge Karen Schreier has ruled South Dakota's gay marriage ban unconstitutional. In a ruling issued today, Judge Schreier finds in favor of Jennie and Nancy Rosenbrahn and five other South Dakota same-sex couples who sued the state for legal recognition of their marriages.

Don't throw all your rice yet: in her brief order, Judge Schreier stays her order pending appeal, "[b]ecause this case presents substantial and novel legal questions, and because there is a substantial public interest in uniformity and stability of the law...."

Stay tuned—I'm reading and seeking details!

Update 15:10 CST: I'm reading the ruling now. Apparently Attorney General Marty Jackley threw a lot of spaghetti at the wall, and none of it stuck. Among the noodles was an argument that the federal court has no jurisdiction over domestic relations. The state cited a ruling that found federal courts cannot issue divorce, alimony, or child custody decrees. Judge Schreier said that's irrelevant: Rosenbrahn et al. are asking the court to rule on a Constitutional question, not issue a divorce, order alimony, or decide child custody [See Schreier ruling, pp. 7–8].

15:13: The AG's office went Sibby and tried to turn the Tenth Amendment into an absolute ban on federal rulings on marriage issues. Judge Schreier said no, state laws on marriage are still subject to the rest of the Constitution [p. 9].

15:20: Citing Loving v. Virginia (1967), Judge Schreier says on page 10, "Marriage is a fundamental right." Permit me to emphasize the period. Judge Schreier rejects the state's argument that this fundamental right continges upon "the categorization of the individual attempting to exercise that right" [p. 12]. Her Honor finds that the preponderance of Supreme Court rulings on marriage "demonstrate that the right to marriage is not broken down into sub-rights depending on the individual attempting to exercise that right" [p. 13].

15:27: Oh, this paragraph's a beauty:

The right to marriage is related to other constitutionally protected rights, such as the right to privacy. See Zablocki, 434 U.S. at 384 (citing Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Personal choices about marriage and other intimate decisions are “central to personal dignity and autonomy” protected by the Fourteenth Amendment. Planned Parenthood of Se. Pa., 505 U.S. at 851. The right to marriage also encompasses an associational right “ ‘of basic importance in our society’ [which is] sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)). The right to make individual moral and sexual choices, particularly with respect to sexual orientation, also enjoys constitutional protection. See Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558). The fact that marriage is intertwined with other fundamental constitutional rights is consistent with the broad interpretation the Supreme Court has given to the right to marriage [Judge Karen Schreier, ruling in Rosenbrahn et al. v. Daugaard et al., 2015.01.12, p. 13].

Your choice to get married (or not!) is fundamental to your dignity and autonomy. The 14th Amendment says the state doesn't get to mess with your dignity and autonomy.

That point and the above point about marriage as a fundamental right are important, because Judge Schreier uses them to dismiss the state's public policy argument that the court should leave this issue in the realm of public debate. She cites Supreme Court Robert H. Jackson in his famous pronouncement on the purpose of the Bill of Rights:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections [Justice Robert H. Jackson, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 1943].

In other words, 51.83% of us don't get to go to the polls and deny a minority a fundamental Constitutional right, be it speech, assembly, due process, or marriage.

15:43: Judge Schreier also dismisses the state's "tradition" defense, saying tradition does not insulate law from constitutional challenge. She footnotes this warning about letting tradition set your definitions:

If traditional definitions of marriage were unassailable, marriage would look much different than it does today. “[W]ithin the past century, married women had no right to own property, enter into contracts, retain wages, make decisions about children, or pursue rape allegations against their husbands” [Schreier, p. 17, citing Kitchen v. Herbert (2014)].

15:48: And for those of you shouting, "Dogs and cats living together!" stop. Judge Schreier says her ruling is no slide down the slope to polygamy, incest, and other nasties. Judge Schreier says the court has legalized interracial marriage and same-sex intimate conduct while letting stand prohibitions on polygamy and incest [pp. 19–20].

16:31: South Dakota contended the state has a compelling interest in "channeling procreation into marriage" and "proceeding with caution." The state failed to demonstrate to Judge Schreier how banning same-sex marriage serves either interest.

On procreation, the state failed to explain why it would ban same-sex marriages but not opposite-sex marriage between people who either cannot or do not have kids. Nor did the state prove that children are worse off with two moms or two dads instead of a mom and a dad [pp. 22–23].

On "caution," the state claimed to be worried that allowing same-sex marriage would 'fundamentally alter a basic societal structure" and hit the state budget by giving a whole new group of people state marriage benefits. That caution argument implies that the state is taking a wait-and-see attitude. Judge Schreier dismissed that argument, saying the state offered no reason that its "caution" ought to require citizens to wait for fundamental Constitutional rights. Judge Schreier also said the same-sex marriage ban was written as a Constitutional amendment, not a temporary statute with a sunset clause, indicating the state was not interested in "proceeding" with or without caution.

16:48: Attorney General Marty Jackley issues a muted press release stating that “It remains the State’s position that the institution of marriage should be defined by the voters of South Dakota and not the federal courts." The AG offers no new or original commentary on the ruling itself and only recycles the odd historical line he has included in past releases noting that our same-sex-marriage ban affirms a Dakota Territory law... which I think Judge Schreier would say is also unconstitutional.

18:16: The South Dakota Democratic Party gives a darn. SDDP chair Ann Tornberg issues this statement:

"The moral arc of the universe is long but it tends towards justice." How true Martin Luther King Jr's words ring true today. Because the SD Attorney General's motion to dismiss was rejected by the US District Court, we are now able to move forward and proceed with a ruling on the case itself. Discrimination has no place in South Dakota law. As we celebrate this success today, the South Dakota Democratic Party reaffirms its commitment to extend equal rights and protections for all South Dakotans [Ann Tornberg, SDDP press release, 2015.01.12].

174 comments

Toward the end of our conversation on KSOO's Viewpoint University yesterday, Dan Peters and Todd Epp asked me what big news stories we should watch for in 2015. You have my dreamy wishlist; now let me cast a partisan eye at my crystal ball and point toward some developing stories that offer smart Democrats some opportunities for organizing and recruiting allies this year for the 2016 election.

The Public Utilities Commission certification hearings on Keystone XL are arousing serious activism among cowboys and Indians. The state Democratic Party should be talking to those activists. Among the Indian opponents, the Democrats may find tribal leaders (and candidates?) who can help activate Indian volunteers and voters on other issues. Among the cowboy opponents, the Dems may find new, unexpected allies who are open to questioning their ingrained West River Republican assumptions and seeking common ground with Dems on other issues. I'm betting the pipeline issue will be resolved this year; Dems should strike now while that iron is hot to invite anti-pipeline activists to turn their energy to other important issues in 2016.

Another issue likely to get some resolution this year will be same-sex marriage. The record in other states and the failure of the Marty Jackley's arguments so far tell me Judge Karen Schreier will throw out South Dakota's gay marriage ban this year. LGBT activists and other lovers of equality and lifelong commitment will celebrate; then they'll want to turn their energy to other equality issues. LGBT activists are holding a summit this month; Democratic Party organizers should be at the summit listening for for ideas on what we can collaborate on in 2016.

South Dakota Democrats should build on one of their only visible areas of success, their ballot measures. Dems in 2014 won the biggest raise in the nation for minimum wage workers, which by itself is a great feather in the cap. We now need to keep tickling Republicans with that feather. We should monitor wage and employment data over the coming year, and when we see economic stimulus from workers with more wages and, as in Minnesota, no sign that increasing the minimum wage hurts job growth, we should loudly and unabashedly remind voters that we were right and the Republican corporate overlords were wrong.

Democrats need to build on that policy momentum, pick another issue (or two?), and get it on the ballot by the November 8, 2015 deadline. They need to march petitions all summer, not just to get a measure on the ballot, but to recruit and mobilize volunteers. They also ned to prepare a full-tilt marketing campaign behind a killer issue on which the party and its candidates can boldly hang their brand.

Democrats won't be alone on the petition trail this year. Rep. Rev. Steve Hickey and Steve Hildebrand have announced their intention to place a payday-lender-killing interest rate cap on the ballot. Daugaardian logic would say, "Don't crowd the ballot; too many issues make voters tired and stupid." But we're not Daugaard; we're Democrats! The more opportunities for people to practice democracy, the more boxes they can mark on a ballot, the better. Dems should think about issues that can synergize with the interest rate cap, and they should keep their radar on for other groups who might be working on initiatives, just in case we need to avoid duplication or cross-purposes, but they should not be afraid to forge their path with the policy initiative they think best serves the interest of the state and the party.

Along with possible issue synergy, the interest rate cap initiative may offer South Dakota Democrats a valuable lesson in coalition-building. Hickey and Hildebrand have already made national headlines with their unlikely political union. Hickey is an evangelical pastor and Republican legislator. Hildebrand helped Barack Obama become President. By any twist of conventional wisdom, a Hickey-Hildebrand collaboration should as unlikely as Stace Nelson and Cory Heidelberger running as a gubernatorial ticket in 2018. But there they are, Steve and Steve, putting aside political opposition to forge a working relationship and solve problems.

Any candidate for SDDP exec who cannot recognize, verbalize, and actualize the lesson in that paragraph should be summarily booted from the interview.

These suggestions apply as much to the state Democratic Party as it does to South Dakota Progress, the new group forming to recruit and support local Democratic candidates. SDP and SDDP (yes, this will be confusing) both need to find new workers, new candidates, new allies, and new dollars. Both groups can find useful conversations and lessons in all of the areas of activism mentioned above. And heck, if SD Progress can grow from mid-term frustration and one good idea into an effective organization, they may offer the South Dakota Democratic Party some lessons as well.

24 comments

Among the victims of the multiple shooting in Sisseton Saturday was Vernon Renville, Jr., also known as Vernon Redday. Lake Traverse Reservation newspaper Sota Iya Ye Yapi reports that Renville advocated for LGBT rights in Indian Country:

Vernon was a gentle giant of a young man, physically large and with an equally big heart. He was known for a sense of humor. And he’d volunteer for any walk or campaign to bring awareness to some of the most important problems on the Lake Traverse Reservation. Whether it was awareness of domestic violence, child abuse, drug and alcohol abuse, prejudice/racism, you-name-it. And he was a strong voice for the LGBT community. His brothers and sisters of the Two Spirit movement are mourning along with Vernon’s family and lots of other friends. We remember him during last winter’s Idle No More walk through snow-covered streets of Sisseton [CD Floro, "Tragedy in Sisseton: Young Oyate Lives Lost in Shooting," Sota Iya Ye Yapi Online, accessed 2014.11.24].

Two Spirit is an Anishinabe term. This social work sheet elaborates:

Two-Spirit is a Native American term that is usually used to indicate a person whose body simultaneously houses a masculine spirit and a feminine spirit. Two-Spirit is a Native concept: Will Roscoe writes that Two-Spirit people have been "documented in over 130 tribes, in every region of North America, among every type of native culture.” Different words are used for Two-Spirit people in different tribes, and the word Two-Spirit may have different meanings in different Native languages. Some tribes may not have a commonly known and used word for Two-Spirit people at this point in time.

Historically and culturally, Two-Spirit people were respected and honored by their tribes. Their gender roles in the community included protecting children; being parental/partners; helping in ceremonies; gathering food and medicine; caretaking; and serving as peacekeepers, name givers, and spiritual leaders. Due to oppression (including homophobia/transphobia) and historical and intergenerational trauma there are issues that may disproportionately impact Two-Spirit/Native LGBTQ people today [Tom Lidot and Lenny Hayes, "Sharing Our Lived Experiences," National Resource Center for Tribes and Tribal STAR, 2014].

Renville had to learn that history to understand his Two Spirit identity:

Renville struggled to find his place as a Two Spirit in his tribal community, but through prayer and asking his elders about the place they held in Dakota culture, he has found some wisdom. “I discovered that we weren't actually outcasts. We weren't shunned or anything, that we were actually highly-revered people and we were assassinated – I guess you could say – by the Europeans” [Alfred Walking Bull, "First S.D. Two Spirit Society Honors and Educates on the Reservation," The Circle, 2014.10.11].

Renville co-founded the new Sisseton-Wahpeton Oyate Two Spirit Society, the first such LGBT advocacy group in South Dakota's nine reservations:

Members of the newly-formed Sisseton Wahpeton Oyate Two Spirit Society gathered on Sept. 26 to educate members of the tribe on LGBTQ Native issues while honoring one of their own who was killed earlier in the month.

The group – the first Two Spirit society in any of the nine reservations in South Dakota – began its mission in June of this year. A testament to the growing power of social media on the reservation, the event “Gay is OK” was the impetus for forming the society. “We all went out to the corner, stood outside and held signs. And while we were standing there, we talked about forming a society, so we set a meeting date and from then on, it's been going ever since,” Vernon Renville, society co-founder said [Walking Bull, 2014.10.11].

In Renville, the Sisseton-Wahpeton Oyate has lost an organizer and a fighter for equality.

39 comments

On Friday, U.S. Judge Karen Schreier rejected the bulk of the State of South Dakota's arguments for dismissing the challenge to its same-sex marriage ban. Judge Schreier's ruling says the two main cases on which the state leans to call for dismissal are not binding. The ruling says the six South Dakota couples suing have a "plausible equal protection claim" based on a fundamental right to marry and gender discrimination. The ruling says the defendants—our Governor, our Attorney General, the Secretary of Health, our Secretary of Public Safety, and the Brown County Register of Deeds—"have articulated no potential legitimate purpose" for South Dakota's discrimination against married homosexuals.

The ruling dismisses the plaintiffs' argument that South Dakota's same-sex marriage ban infringes on their right to travel. Judge Schreier says that a key component of the right to travel is that individuals who take up residence in a new state enjoy "the right to be treated like other citizens of that State." Judge Schreier says South Dakota's refusal to recognize same-sex marriages "appl[ies] equally to new citizens and existing citizens of South Dakota." That's tricky reading—our same-sex marriage ban still discriminates, according to everything before the judge so far, but since we're discriminating against all homosexuals and not just those durned furriners from Minnesota and California, the plaintiffs can't challenge the ban on right to travel.

The primary import of Judge Schreier's ruling is that the state loses its bid for dismissal, the case moves forward, and the state appears to have no good arguments on the flow.

Dealt a hard defeat, Attorney General Marty Jackley plays the kid who failed his spelling test, got in trouble for mouthing off at the teacher, but leads his answer to Mom's question about how school was today by telling her they got apple crisp for lunch. "Federal Court Grants in Part State’s Motion to Dismiss Same-Sex Marriage Case," he headlines his Friday press release. Yet not one media outlet in South Dakota has shared Jackley's assessment:

  1. "Late yesterday afternoon, Federal Judge Karen Schrier denied the state's motion to dismiss a lawsuit challenging South Dakota's ban on same-sex marriage."
  2. "Judge Rejects Motion to Dismiss SD Gay Marriage Case"
  3. "Judge Rejects Motion to Dismiss Gay Marriage Case"
  4. "Gay Marriage Case in SD to Proceed"

Come on, Marty: Judge Schreier ate your garlic bread but threw out your spaghetti and sauce. The plaintiffs can walk into court with the same arguments they've offered so far and win, while you have to boil up a whole new pot of noodles to throw against the wall to preserve the false right of the majority to discriminate against the minority.

45 comments

Judge Karen Schreier is taking some time to compose her ruling on South Dakota's same-sex marriage ban.

While we wait for Judge Schreier to overturn the narrow 2006 majority who wrote that discrimination into our state constitution, how about a movie? The SDSU Gay Straight Alliance and the SDSU Office of Diversity, Equity, and Community are sponsoring a Brookings showing of The Case Against 8, a documentary about the fight against California's same-sex marriage ban.

After the movie, Nancy and Jennie Rosenbrahn, the happily married ladies leading the court challenge to South Dakota's ban on their legal relationship, will participate in a discussion of the film and their efforts for equality, along with two Sioux Falls couples participating in the lawsuit.

The Case Against 8 plays Tuesday, October 21, at 6:30 p.m. as part of the Common Good Film series at the Brookings Public Library, Brookings, South Dakota.

3 comments

The Equality South Dakota PAC has announced its candidate endorsements for 2014. Our three marquee Democrats—Rick Weiland, Corinna Robinson, and Susan Wismer—all get the nod, although they mention that Larry Pressler also backs legalizing same-sex marriage.

The Equality South Dakota PAC also gives official love to these Legislative candidates:

Our gal Robin gets special mention for taking on homo-xeno-trutho-phobic Phil Jensen:

Equality South Dakota urges you to support Robin. She has publicly spoken out against her opponent, incumbent State Sen Phil Jensen. Jensen introduced the controversial SB 128 this past session. SB 128 (which was rightfully killed) would have allowed businesses to legally discriminate against LBGT based upon the business owner’s religious beliefs. Robin Page voiced her support for LGBT equality at this year’s Black Hills Pride Festival and her platform strongly supports the LGBT community. She is directly campaigning against her opponent's support of SB128 (Page Running As Anti-Jensen, Rapid City Journal, Sept 29) [Equality South Dakota PAC, candidate endorsement, October 2014].

My only problem with EqSD-PAC's endorsements is that more candidates haven't earned them. Listen to the kids, kids: equality and civil rights for all citizens are the way all candidates should go. If you're not on EqSD's list of candidates fighting for justice, you should be.

Related: Steven C. Hildebrand reminds friends on Facebook that the lawsuit that could overturn South Dakota's same-sex-marriage ban gets a hearing on Friday:

Sioux Falls Area Friends - There will be a hearing in front of Federal Judge Karen Schreier as to the constitutionality of South Dakota's ban on same-sex marriages this Friday, Oct. 17 at 9 am Central time. The hearing is open to the public and will be held in the Federal Courthouse on Phillips Avenue in downtown Sioux Falls, Courtroom #2.

I would encourage any of you who are available to join us at the Courthouse on Friday. It would be a great way to show strong support for over-turning the ban [Steven C. Hildebrand, Facebook post, 2014.10.14].

Popcorn is not allowed in the courtroom, but curious and civic-minded citizens are!

17 comments

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