Josie Weiland, at home in Piedmont, South Dakota, 2014.08.16

Josie Weiland, at home in Piedmont, South Dakota, 2014.08.16. (That snake on her arm isn't permanent; she was entertaining kids with face-painting at her uncle Rick's fundraising concert Saturday.)

Josie Weiland just graduated from high school. She's headed for Northern Arizona University in Flagstaff. Her uncle Rick is running for U.S. Senate.

Josie Weiland made her own political news last February, when she stood up at a crackerbarrel and challenged Senator Phil Jensen's absurd assertion that his proposal to let businesses discriminate against homosexuals was really an "anti-bullying free speech bill." She took a break from entertaining the kids at the fundraising concert her dad Kevin hosted for her uncle Rick yesterday to talk about what led her to political activism.

You might think that her politically minded family led her to her political consciousness, but Josie says that's not the case. Her own political curiosity (Weiland genetics?) led her to start reading up on homosexuality and equality issues on the Internet. She read about the combination of mounting empirical evidence and political action that led the American Psychiatric Association to remove homosexuality from the list of mental illnesses. She raised the subject of homosexuality and social responses to it at home, and while her family openly discussed the topic, she formed her own views.

Weiland sees most of her generation understanding and accepting homosexuality (a view shared by her young East River political counterpart Cody Hausman and supported by this 2013 Washington Post/ABC poll). But a vocal minority of her peers motivated her own interest in LGBT equality. She attended a conservatively oriented school where she regularly heard students tossing about ignorant anti-gay insults like, "It's Adam and Eve, not Adam and Steve." Despite more positive messages about LGBT tolerance from at least one teacher, Weiland left that school her freshman year. Yet even in a somewhat more diverse and tolerant environment, she still heard ignorant attitudes causing others harm. That injustice provoked her to action.

Initially she didn't plan to speak up at the February 1 crackerbarrel in Rapid City. But the night before the event, she thought more about the injustice inherent in the discriminatory legislation proposed by Jensen and other legislators across the state and nation and decided to prepare some remarks and a question to defend gay and lesbian fellow citizens from discrimination.

After she confronted Senator Jensen, Weiland was distressed by the legislator's unwillinginess to engage in open dialogue. She dealt with sloppy journalism and personal attacks online with pretty good aplomb for a high-school senior unaccustomed to the invective political activists can draw.

But Weiland has not let those negative reactions from others drag her into similar tactics. Her interaction with equality opponents and supporters alike has shown her the advantage of positive messaging. She recalls that at the crackerbarrel, she and other supporters started a rallying chant in which they listed states that ban gay marriage and shouted "Shame!" after each name. One member of her group interrupted the chant and asked that they replace the shaming with something more positive. So instead of "Shame!" the group started responding to the list of states blocking equality with, "Yes we can!" Weiland says that simple change in language changed the emotion and energy of the group to something that felt more hopeful and proactive.

Weiland sees her generation ready and able to engage in politics. However (again reflecting views reflected by Hausman last spring), Weiland sees traditional political activities like crackerbarrels as "old school" and says young people see more ease and usefulness in social media. When a friend invited her to attend the February 1 crackerbarrel, she first thought of the restaurant, not the public forum.

Yet Weiland says that even with such powerful learning and organizing tools in their hands, young people seem largely apathetic to political issues. She thinks part of the problem may be too little discussion of politics in school. In her government class, Weiland says her teacher avoided discussions of "taboo" subjects like gay rights and abortion. Weiland thinks avoiding such topics deters students from discussing controversial issues. They get frustrated and tune out.

Weiland counters with her experience on the high school debate team (ably coached by Pennington County State's Attorney Mark Vargo). Debate is all about sharing and testing ideas and letting opposing views contest each other. Weiland says that letting more students experience that vigorous and healthy contest would incline more students toward engaging in politics.Weiland would like to continue engaging in politics, although she does have a few other important things to do, like figuring out a major. When she finishes university, Weiland doesn't envision running for high office like her uncle, but she likes the idea of involving herself in local politics. But above all, she wants to do her civic duty by reading, learning, and speaking up about LGBT equality and all the other issues affecting her community and encouraging others to do the same.

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Last week we discussed Dell Rapids coach and Augie grad Nathan Alfson's announcement that he is gay. This week we get the news that his announcement will not cost him his job. Catholic school Dell Rapids St. Mary's will continue to employ Alfson as their girls volleyball coach.

The Sioux Falls Catholic Diocese says we shouldn't be surprised that a Catholic school would allow an openly gay man to remain on the payroll. And indeed, we should not be: in a perfect world, no employer would inquire into the private, personal activities of its employees. No religious employer would dither over the various sins of their employees that do not affect the employees' ability to perform their jobs.

And even if there are some Christians who maintain that homosexuality is a sin, we should not expect it to be news that Christian institutions employ people who sin. As I understand theology, everyone who works for a Christian institution sins (even the Pope!). If we go around firing sinners, we're going to have a severe labor shortage.

Let us hope that the best public outcome of the news about Nathan Alfson is that someday, similar announcements of love and employment will not be news.

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Nathan Alfson, 2011, in his Augie baseball gear

Nathan Alfson, 2011, in his Augie baseball gear

Nathan Alfson identifies himself as a gay Christian athlete. And now the Dell Rapids coach, 2012 Augustana graduate, and Pipestone native has decided to do so publicly. Why take the risk of becoming a political lightning rod?

I am writing my story to share with the world that it is OK to be who you are born as and feel confident about it. I have found that there are other people in the world just like me and I don’t have to feel alone any longer. I am a proud openly gay man with a great job as a program coordinator for an agency that serves adults with disabilities [Nate Alfson, "Young Gay High School Baseball Coach Finds Acceptance in Rural South Dakota," Outsports, 2014.08.05].

Alfson wants other South Dakotans in his situation to feel that same self-confidence... the same self-confidence that a majoritarian heterosexual like me can enjoy while holding my spouse's hand in a public park without a second thought:

...[K]now that there are people in the world who care about you and understand what you’re going through. Finding that support system first was the most helpful thing I did and reading other stories by openly gay athletes of how happy they are and how much support they have received allowed me to be confident enough to share my story.

We are all in this together and we can change this fear inside ourselves one story at a time. Make a difference in the world by being kind to one another and don’t be afraid to do good deeds to those around you. A smile goes a long way. Be you, be true, and never forget that you matter [Alfson, 2014.08.05].

Nate, we shouldn't have to call you brave for simply saying who you are and whom you love. But we do, and you are.

Let's see how Dell Rapids and South Dakota respond to Nate and to thousands of neighbors like him.

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What will happen when the courts overturn South Dakota's ban on same-sex marriage? Look at Minnesota, where legislators beat the courts to the punch and made gay marriage legal last year, and you'll see the answer is, not much:

...something unexpected has happened in the year since the issue became one of the state’s most high-profile and hotly debated topics: Outside of a handful of districts across the state, gay marriage has quietly faded into the background this campaign season. Statewide GOP candidates for governor and the U.S. Senate are talking about the economy, not social issues. Even DFL incumbents in rural districts say the issue doesn’t come up as much as they thought it would.

“I don’t think the issue is totally dead, but people have seen the sky isn’t falling,” said DFL Rep. Tim Faust, whose Hinckley-area district, like Radinovich’s, voted in favor of the ban while he voted in favor of legalization. “Massive amounts of people have not gotten divorced; it hasn’t been the disaster that was predicted by the other side. Things are changing across the country... [Brianna Bierschbach, "Whatever Happened to the Gay-Marriage Backlash?" MinnPost, 2014.07.14].

Marty, don't work up too much of a sweat fighting Jennie and Nancy Rosenbrahn's lawsuit against the state. As Minnesota shows, defeating discrimination and letting homosexuals marry doesn't have much of a discernible downside.

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Sweet 16: Colorado joins the list of states whose same-sex marriage bans have fallen before judicial scrutiny. District Court Judge C. Scott Crabtree agreed with nine couples from Denver and Adams counties that Colorado's same-sex marriage ban violates the Constitution. Judge Crabtree stayed his own ruling, acknowledging that the state will appeal and that the final word will have to come from the state or federal Supreme Court.

In his ruling [C. Scott Crabtree, Brinkman, Burd, et al. v. Long and Colorado, 2014.07.09; links added], Judge Crabtree says Colorado's denial of the fundamental right of marriage to a minority of its citizens "bears no rational relationship to any conceivable government interest":

Like DOMA, the expressed purpose of the amendment is to discriminate against an unpopular minority by denying members of the minority access to a right which the United States Supreme Court has repeatedly said is “fundamental.” Under any reading of Romer v. Evans, 517 U.S. 620 (1996) and Windsor, these laws cannot stand constitutional scrutiny and must be stricken [Crabtree, p. 10].

Colorado argued that "[T]he exclusive capacity and tendency of heterosexual intercourse to produce children, and the State’s need to ensure that those children are cared for, provides that rational basis" a state interest in discriminating against non-heterosexual couples seeking marriage licenses.

Such an argument ignores that many heterosexual couples who marry without the intent or ability to naturally procreate children are nonetheless allowed to marry. This “responsible procreation” justification has been raised by many other states in defending their similar bans on same gender marriages and has failed in every case. Colorado law is devoid of any proscription on parenting by same gender couples and the Uniform Parentage Act, C.R.S. §19- 4-101, expressly allows for two parents of the same gender. The State allows same gender couples to adopt children, to beget or give birth to children through artificial means or surrogacy and to retain custody after a failed heterosexual marriage [Crabtree, p. 11].

...There can be no doubt that same-sex couples are equally equipped to raise healthy, happy children as opposite-sex couples [p. 14].

Colorado argues that banning same-sex marriage "encourage potentially procreative couples to raise children produced by their sexual union together."

There is no logical reason to believe extending the marriage right to all couples would have this effect. As the Kitchen court explained, “It defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts.” Kitchen v. Herbert, 961 F.Supp.2d 1181, 1211 (D. Utah 2013) [Crabtree, p. 15].

In other words, heterosexuals are going to get it on and have babies regardless of whether the state discriminates against homosexuals.

While the state says it wants to promote child-rearing by committed couples, Judge Crabtree finds that denigrating committed same-sex couples only makes committed child-rearing harder:

The Marriage Ban exacerbates the very problem the State purportedly seeks to solve by insisting that the children of same-sex couples continue to be denied the stability and dignity of their parents’ marriage. Further, the State’s asserted interest is belied by its own laws. No state, including Colorado, restricts marriage to the procreative and the fertile [Crabtree, p. 24].

Coloradans amended their constitution in 2006 to state that "Only a union of one man and one woman shall be valid or recognized as a marriage in this state." South Dakotans added a nearly identical amendment the same year: "Only marriage between a man and a woman shall be valid or recognized in South Dakota. South Dakota's same-sex-marriage ban goes further, refusing to recognize civil unions, domestic partnerships, or other "quasi-marital" relationships. Colorado law allows civil unions.

But Colorado's milder discrimination is still discrimination:

The fact that the State has created two classes of legally recognized relationships, marriages and civil unions, is compelling evidence they are not the same. If civil unions were truly the same as marriages, they would be called marriages and not civil unions. If they were the same, there would be no need for both of them [Crabtree, p. 11].

...Civil unions are a separate, second-class institution which does not confer the same benefits and protections as marriage. “The history of our nation has demonstrated that separate is seldom, if ever, equal.” Opinions of the Justices to the Senate, 802 N.E.2d 565, 569 (Mass. 2004) [p. 16].

...“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.” In re Opinions of the Justices to the Senate, 802 N.E.2d at 570. The fact is that those in a civil union do not and cannot obtain the same benefits and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be no real need for this second tier relationship. The State paid only lip-service to the plaintiffs’ arguments that civil unions were not unlike the “separate but equal” black and white educational systems [p. 41].

Judge Crabtree cites a whole bucket of precedents to add Colorado to the list of sixteen states that have failed to make the argument that South Dakota Attorney General Marty Jackley must gamely make in the Rosenbrahn case that will overturn South Dakota's same-sex marriage ban. AG Jackley will have nothing new to say in defense of South Dakota's decision that hasn't already been said and rejected in sixteen other states. Accordingly, the judge hearing Rosenbrahn v. Daugaard will likely may just crib Crabtree and the other judges who have overturned same-sex marriage bans less constitutionally offensive than South Dakota's.

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This week's Hobby Lobby ruling gives District 33 residents all the more reason to vote for Robin Page to replace Phil Jensen as their State Senator. Last session, Senator Jensen tried to legalize anti-LGBT discrimination under the risible guise of protecting his co-religionists from homosexual bullies. Left in office, Jensen may follow the lead of religious leaders who are already trying to leverage the Hobby Lobby ruling into a defense for Jensenesque discrimination:

...A group of faith leaders is urging the Obama administration to include a religious exemption in a forthcoming LGBT anti-discrimination action.

Their call, in a letter sent to the White House Tuesday, attempts to capitalize on the Supreme Court case by arguing that it shows the administration must show more deference to the prerogatives of religion.

"We are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need," the letter states [Molly Ball, "Hobby Lobby Is Already Creating New Religious Demands on Obama," The Atlantic, 2014.07.02].

I'm not a Christian (and the fourteen individuals who signed the "Please let us discriminate" letter to the President appear to represent exclusively Christian organizations), so I'm going to need the believers in the audience to help me out. How does saying to a job applicant, "You're transgendered, so I'm not going to hire you" advance your Christian faith and mission? Or, more to the point of the planned executive order to which the letter seeks an exemption, how does requiring you not to deny employment to folks who've had sex-change operations or to men who kiss men when you take federal contracts for work in the secular realm hinder the free exercise of your religion?

If the Bible says, "Don't hire sinners," doesn't that reduce your job applicant pool to zero?

Phil Jensen fought last session for anti-LGBT discrimination as religious freedom. Religious leaders are picking up Hobby Lobby as a club to further promote that fight. We will need more legislators like Robin Page to fight back.

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My Republican neighbors like to complain about "activist judges" and President Obama's executive orders.

But when it comes to gay rights, these conservative complainers should take a chill pill. By overturning gay-marriage bans and extending benefits to same-sex couples, judges and the President are saving Republicans' necks:

One Democrat makes a smart point to me this morning: In many ways, executive actions and the courts are saving Republicans from themselves on gay rights. A lot of the work is getting done without them having to lift a finger. They are increasingly going mute on the issue in the face of announcements such as the one promising executive action to end gay workplace discrimination [Greg Sargent, "Another Test for Republicans on Gay Rights," Washington Post: Plum Line, 2014.06.20].

Republicans deserve no plaudits for standing on the sidelines instead of actively obstructing civil rights, maybe just fewer rotten tomatoes. More praise goes to brave politicians like Independent Larry Pressler, who in the midst of running for Senate in blood-red South Dakota, filed an amicus curiae brief this week in Rosenbrahn v. Daugaard, the lawsuit seeking to overturn South Dakota's same-sex marriage ban:

Pressler Amicus Curiae Rosenbrahn v Daugaard 20140618 p1 Pressler Amicus Curiae Rosenbrahn v Daugaard 20140618 p2

Pressler expressed similar moral and practical sentiments prior to his candidacy. In April 2013, Pressler argued publicly that forbidding gay marriage could cause South Dakota to lose Ellsworth Air Force Base and other economic development opportunities. He consistently defended that position after he declared his Senate candidacy when he opposed the vile gay-discrimination SB 128 floated in the South Dakota Legislature in February 2014. And as we see above, Pressler says that civil marriage is a "fundamental right" and that conservatives ought to be all about protecting civil rights and the equal opportunity they provide for every citizen.

Democrat Rick Weiland has also vocally and fearlessly supported marriage equality throughout his campaign. Weiland and Pressler deserve credit for their active support of civil rights. Their Republican opponents deserve derision for at best ignoring civil rights while the judges and President they deem evil do the work of equality for them.

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We're going to court. We, all South Dakotans, will pay taxes to pay Marty Jackley to go to court and tell six same-sex couples (and all their compadres rooting for them around the state), "Your love ain't right."

I'd rather we patch potholes.

Here are key excerpts from the brief filed Thursday afternoon in U.S. District Court by Jennie and Nancy Rosenbrahn, Jeremy Coller and Clay Schweitzer, Lynn and Monica Serling-Swank, Krystal Cosby and Kaitlynn Hoerner, Barbara and Ashley Wright, and Greg Kniffen and Mark Church, six "loving and committed" couples who want to overturn South Dakota's gay marriage bans (plural, the laws we passed in 1996 and 2000 and the Constitutional amendment we passed in 2006):

Marriage plays an important role in our society. In addition to being the celebration and hallmark of a couple’s commitment to build their lives and family together, it confers dignity, status, rights, and responsibilities. Plaintiffs have formed or want to form enduring bonds worthy of the respect that the State affords to different-sex couples through marriage. Yet, the State has deprived gay and lesbian South Dakotans of the right to marry their chosen partners and declines to recognize lawful marriages entered in other jurisdictions based on sexual orientation and sex [parag. 16].

Our courts and our society have discarded, one by one, marriage laws that violated the United States Constitution’s mandate of equality and liberty, such as anti-miscegenation laws and laws that denied married women independence and the right to make their own decisions. History teaches us that the vitality of marriage does not depend on maintaining discriminatory laws, and that eliminating unconstitutional restrictions on marriage has enhanced the institution. Indeed, in 17 states and the District of Columbia, same-sex couples are legally marrying and the institution of marriage continues to thrive [parag. 22].

When Barb and Ashley married, Barb took Ashley’s last name. Because the State of South Dakota refuses to recognize their marriage, however, the State of South Dakota refuses to issue Barb a drivers license in her married name. A few weeks after her marriage, Barb went to the Aberdeen Drivers’ Licensing station and attempted to have her name changed. An agent for Defendants Daugaard, Jackley, and Jones denied her. The hostile agent told Barb to leave the licensing station and for her and her family to “move back to Minnesota” [parag. 80].

Plaintiffs are residents of South Dakota who experience the same joys and challenges of family life as their heterosexual neighbors, co-workers, and other community members who may marry under South Dakota law or whose lawful out-of-state marriages are recognized by South Dakota. Plaintiffs are productive, contributing citizens who support their families and nurture their children, but the State of South Dakota does not afford them the legal protections, dignity, and respect provided to other families through access to the status of marriage. By excluding Plaintiffs from marriage and from recognition of their lawful out-of-state marriages, the State subjects Plaintiffs to legal vulnerability, unequal financial burdens, and related stress, while depriving them and their children of equal dignity and security. South Dakota’s marriage bans send a purposeful message that the State views lesbians and gay men and their children as second-class members of society who do not deserve the same legal sanction, legal protection, respect, support, responsibilities, and obligations as different-sex spouses and their families [parag. 97].

Defendants’ refusal, under color of State law, to respect the valid out-of-state marriages of Plaintiffs and other same-sex couples unconstitutionally burdens and infringes on Plaintiffs’ right to travel throughout the nation and to resettle and make a new home in South Dakota. By conditioning Plaintiffs’ move to South Dakota on relinquishment of all rights, benefits, and responsibilities of their marriages lawfully celebrated in other States, the State has imposed a penalty on Plaintiffs’ exercise of their constitutionally protected right to travel. Defendants’ actions therefore constitute a “deprivation of the liberty of the person,” Windsor, 133 S. Ct. at 2695, protected by the Fourteenth Amendment [parag. 153].

The State will incur little to no burden in allowing same-sex couples to marry and in recognizing the lawful marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples, while the hardship to Plaintiffs of being denied due process, equal protection, and privileges or immunities is severe, subjecting them to an irreparable denial of their constitutional rights. The balance of hardships thus tips strongly in favor of Plaintiffs [parag. 159].

—Rosenbrahn et al., v. Daugaard et al., Complaint for Permanent Injunction and Declaratory Relief, United States District Court of South Dakota, 2014.05.22

Attorney General Jackley, if ever there was a time for you to not do your job right, this is it. Let our neighbors win. Let the law change. Let love rule.

Update 06:58 CDT: But if you're still worried that these six couples will somehow ruin your marriage, Pastor Steve Hickey will hold a prayer service this evening at 7 p.m. at his Church at the Gate in Sioux Falls seeking an amicus curiae brief from God Almighty.

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