Right to refuse to perform same-sex weddings defeated

A divided Senate committee defeated a proposal to let church officials refuse to perform marriages they they object to Thursday morning.

After an hour of very personal testimony and debate, the Senate Judiciary Committee voted 4-3 to kill Senate Bill 66.

Opponents concluded that clergy already have the rights contained in the bill, and that it was unnecessary.

"I really don’t see the need for this," said Sen. Mike Vehle, R-Mitchell. "I think it’s covered under current constitution and law."

Sen. Ernie Otten, R-Tea, had brought the bill, citing examples in other states and countries where he said ministers had been prevented from opposing same-sex marriage.

"This matter of conscience must be protected from those who are intolerant of someone else’s deeply held religious views," Otten said.

Rep. Steve Hickey, R-Sioux Falls and a pastor, said he only performs opposite-sex marriages and believes the law should explicitly protect that choice.

"It is not because I hate anyone. It is not because there’s bigotry," Hickey said. "In fact, it’s because I deeply care about people, and because I’m deeply convinced for religious and science reason that traditional marriage is best for society."

Several socially conservative groups also backed the bill.

Dale Bartscher, executive director of the Family Heritage Alliance, said the spread of same-sex marriage will make the belief that marriage is only between a man and a woman “increasingly… characterized as an irrational prejudice that ought to be driven to the margins of culture.”

And all the opponents said they believe same-sex marriage is eventually coming to South Dakota.

"In other states we see it," Hickey said. "It’s just a matter of days. It’s very close to our state."

Another pastor, Methodist Karl Kroger of Piedmont, was the lone person to testify against the bill.

"I’m here primarily to give you the message that was predominantly given to people by the angels, and that was, do not be afraid," Kroger said. "We’re not being persecuted."

Kroger said ministers already have the freedom to refuse to perform marriages, even for reasons of racial prejudice.

"We have freedom of religion, and sometimes it allows us to do some things that people might question," Kroger said.

A majority of the committee agreed.

"Under these (constitutional) rights, no one is forced to do a marriage for any individual," said Sen. Jean Hunhoff, R-Yankton. "I see this as a political statement."

Supporters agreed, but said it was a necessary statement.

"I certainly do agree that it is a (political) statement… to defend that traditional marriage between a man and a woman," said Sen. Mark Kirkeby, R-Rapid City.

Afterwards, Otten said he didn’t see the vote as a “defeat.”

"I think that we opened a dialogue, and I think that is good for the state," Otten said. "I respect the senators greatly on the different viewpoints, and we’ll just see what tomorrow will bring. I don’t think this issue will go away."

But Otten said he’s not going to bring the issue back this year.

Before Thursday’s hearing, Otten withdrew a second bill that had provoked even more controversy. Senate Bill 67 would have given protection from providing services to objectionable marriages to any citizen, such as a wedding cake baker or a florist. He withdrew that bill after attorneys told him individuals already have that protection.

One refusal-of-service bill withdrawn

Sen. Ernie Otten has withdrawn his proposed legislation giving individuals a right to refuse to provide services to weddings they held a sincere belief against.

That legislation, Senate Bill 67, was intended to protect people such as bakers or wedding photographers from being forced to participate in same-sex weddings if they believed those marriages to be wrong.

Several people in states with same-sex marriage have been sued for just that. But those individuals were sued under those states’ anti-discrimination laws, which barred discrimination on the basis of sexual orientation. South Dakota law does not protect sexual orientation as a class.

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."

He withdrew the bill, a new ability this year for South Dakota lawmakers. The Legislative Procedure committee voted to allow lawmakers to withdraw legislation just last week. Previously, the only option for an unwanted bill was for the sponsor to ask a committee to kill it.

But Otten didn’t withdraw a second, related bill. Senate Bill 66 provides protection specifically to religious leaders from officiating over ceremonies they have a sincere objection to.

SB66 is up for a hearing Thursday at 8 a.m. before the Senate Judiciary Committee.

Supporters of gay rights had focused their ire on SB67, describing SB66 as unnecessary but not harmful.

Bills propose new right to refuse service for weddings

Clergy, wedding photographers, bakers, florists and others could get the right to refuse to help with weddings they have a “sincerely held” belief against in South Dakota.

A pair of bills before the South Dakota Legislature would establish that right. They’re aimed primarily at same-sex marriage but are intentionally written to apply more broadly.

"What we are seeing nationally is, gay rights are trumping religious freedoms," said Rep. Steve Hickey, R-Sioux Falls and a pastor. "If a person wants a different kind of marriage than we’re offering, go where they do that. Don’t sue me for not providing that service."

One bill, SB66, would allow clergy like Hickey to refuse to officiate over marriages to which they’re opposed. The other, SB67, would give the same protection to any person or personal business providing services to a wedding.

Same-sex marriage is currently against the law in South Dakota, after the voters added a ban to the state’s constitution in 2006. But given recent votes and judicial decisions that have legalized same-sex marriage in other states, opponents of gay marriage like Hickey and Sen. Ernie Otten, R-Tea, thought it was important to be “proactive.”

In states like Oregon and Colorado, individuals have been successfully sued for refusing to sell things like wedding cakes to same-sex couples.

But Eugene Volokh, a UCLA law professor who specializes in the First Amendment, said there’s a difference between those states and South Dakota other than legal same-sex marriage there.

What forces individuals to not discriminate against same-sex couples is not legal same-sex marriage, but laws banning discrimination based on sexual orientation, he said.

States like Oregon and Colorado, where people have been successfully sued for refusing service to same-sex couples, have those protections. South Dakota doesn’t.

In South Dakota, it’s unlawful for someone like a store owner to discriminate based on “race, color, creed, religion, sex, ancestry, disability or national origin.”

"People (in South Dakota) are already free to discriminate, even much more broadly, based on sexual orientation," Volokh said. "I’m not sure the statute is necessary (to address same-sex weddings)."

Hickey said the bill is necessary, because of the potential for sudden court rulings.

"It’s possible for the Supreme Court to declare a protected class of people instantly," Hickey said. "So it’s not too soon to start putting in these kind of bills."

If passed, the bills would carve out an added exception to South Dakota’s anti-discrimination laws. It would become legal to discriminate, even over protected areas like race or religion, as long as the subject was related to a wedding and was motivated by deep religious or philosophical beliefs.

"This isn’t limited to same-sex marriage ceremonies," Volokh said.

Otten and Hickey said they agree individuals should have the freedom to discriminate with wedding services — even if they’s discriminating against Christianity or something else the two support.

"That’s a matter of conscience," Otten said. "In my mind it is just total freedom in protecting people."

Hickey said people could freely choose not to patronize businesses whose choices they disagreed with.

"Let the market bear it out," Hickey said. "If there’s some racist group, they can boycott it."

Supporters of gay rights in South Dakota, such as Sen. Angie Buhl O’Donnell, D-Sioux Falls, don’t like the bills — but particularly dislike SB67, the one providing protection to a broad range of wedding services.

"The clergy one is one that’s been done in lots of other states, and really spells out protection that clergy already have," Buhl O’Donnell said, calling it "unnecessary."

Buhl O’Donnell said the second proposal, allowing ordinary people to discriminate in wedding services, seemed “mean-spirited.”

"In South Dakota, we’re a lot of small towns, and we’re really built on being neighborly and having a sense of community," she said. "This bill really seems antithetical to that."

Otten said it’s not about being mean, it’s about being tolerant of some people’s deeply held beliefs.

"I personally do not care how people live. I think that is their freedom, and one needs to respect that," Otten said. "On the same token, because of what has gone on in other states, this intolerance of conscience keeps on popping up. I just wanted to protect those folks."

Volokh noted another potential side effect of the second bill, which gives protection to “people” with deeply held beliefs.

“‘Person’ doesn’t only mean private person. It also means a person acting in a governmental capacity,” Volokh said. “I wonder if, for example, the statute would allow clerks in a courthouse to refuse to hand out marriage licenses, if they find that some marriage doesn’t comport with their religious principles.”

There is one thing both sides agree on: same-sex marriage is likely become legal in South Dakota, sooner or later. Otten said he was spurred to produce these bills after some pro-same-sex marriage advocates talked about a ballot initiative to legalize it, and Buhl O’Donnell said she sees it being legalized soon, too.

"This is coming to South Dakota," Hickey said. "We’ve seen this issue move very fast in social acceptance in America."

No consensus on key subjects at Sioux Falls forum

There was little consensus on many of the highest profile issues of the 2013 Legislature at Saturday’s final Sioux Falls legislative coffee of the year.

On questions about Medicaid expansion, guns in schools, abortion and texting while driving, the 11 local lawmakers present demonstrated why those issues have been so controversial with collegial but consistent disagreement.

"This is an opportunity for us as a state to be in a leadership position and say, ‘We want to help these people who can’t help themselves,’" said Rep. Paula Hawks, D-Hartford, about expanding Medicaid eligibility to people with incomes up to 138 percent of the federal poverty limit.

Sen. Ernie Otten, R-Tea, took a different tack.

"This has got absolutely nothing to do with not wanting people to have health care," Otten said. "It does have to do with affordability and making sure we keep our budget within our means."

The “school sentinels” bill to give districts the option of arming volunteer defenders was praised as common-sense and permissive — and blasted as a step in the wrong direction.

"We’re not talking about giving everyone guns," said Rep. Steve Hickey, R-Sioux Falls. "The conversation is what about the districts that can’t have a law enforcement officer. Is there another person that could be qualified to get in there? I’m in favor of giving the school district that option."

Rep. Marc Feinstein, D-Sioux Falls, worried that putting more guns in schools would lead to innocent students being shot if there were ever an incident, citing an incident in New York City last year where trained police officers shot bystanders while trying to take down a shooter.

A ban on texting while driving also drew both advocates and skeptics. Rep. Anne Hajek, R-Sioux Falls, said the ban could create “a culture of kids who start driving, who realize you don’t text and drive.” Rep. Mark Mickelson, R-Sioux Falls, said he was having a hard time coming up with arguments “about why someone should text and drive.”

But Otten said the ban would be impossible to enforce, and Rep. Isaac Latterell, R-Tea, suggested it was an example of government trying “to be everyone’s parents.”

A proposal to exclude weekends and holidays from South Dakota’s 72-hour pre-abortion waiting period inspired some of the morning’s sharpest language, with Feinstein quipping that “you don’t get pregnant just between 8 to 5 on weekdays” and Latterell concluding “unequivocally” that “Planned Parenthood does not care about women.”

Saturday’s legislative forum was sponsored by a range of groups including the Sioux Falls Area Chamber of Commerce. It was the fourth and final of four Chamber-sponsored legislative forums this session, which has two more weeks remaining.

Committee shoots down guns-on-campus bill

A legislative committee shot down a proposal to allow guns on South Dakota’s college campuses Tuesday.

Supporters of Senate Bill 177 said it would uphold the Second Amendment rights of college students and provide protection against a mass shooter.

“These folks are adults,” said Sen. Ernie Otten, R-Sioux Falls. “These are the same folks who have the right to vote, who sign up to protect us in the military.”

He and Rep. Lance Russell pointed to other states, such as Oregon and Colorado, that they said have similar laws.

SB 177 would have forbidden universities and technical schools from “abridging the ability of any person to carry or possess a firearm in accordance with state law.”

But a parade of opponents testified against the measure, saying it was unneeded, unwanted and dangerous.

The director of the Board of Regents warned that the bill was poorly written and could have unintended consequences. It could stop universities from banning guns in laboratories where metal is forbidden, said Jack Warner. It could also make South Dakota universities ineligible to host NCAA tournaments, which require gun bans in arenas.

Representatives of the student bodies of the state’s major universities also testified against the bill. The student governments of Northern State University, South Dakota State University and the University of South Dakota all voted to oppose SB 177.

Members of the Senate Judiciary Committee agreed.

Sen. Jean Hunhoff said she was persuaded to oppose the bill by the opposition of the students, the people who would be affected.

“We have students here who are representing their institutes of higher learning,” Hunhoff said. “They are the ones telling us we do not want guns on campus.”

The committee voted 5-2 to kill SB 177.

Teen driving study applauded, but lawmakers cautious

Members of the South Dakota Legislature’s transportation committees praised members of a task force that studied teen driving, but stopped short of endorsing their four proposed bills Thursday morning.

The task force, which included legislators, state officials and members of the public, studied South Dakota’s high teen driving crash rate and recommended four laws: banning young teens from using cell phones while driving, limiting the passengers they can carry, requiring more instruction before they can drive on their own and creating a statewide driver education coordinator.

Read an introduction to the proposed changes here.

Lawmakers were enthusiastic about the task force’s work, praising the research they gathered and the uncompensated time they spent gathering it.

But the description of the bills by Sen. Craig Tieszen, R-Rapid City, didn’t win any immediate converts.

Most lawmakers on the committee said simply that they’d keep an open mind about the legislation until they see the specific language.

The bill that would ban teen drivers on instruction or restricted permits from using electronic devices while driving drew particular skepticism.

Sen. David Omdahl, R-Sioux Falls, said he has doubts about the enforcability of bans on mobile phone use.

Sen. Ernie Otten, R-Tea, agreed. But Otten said that while he’s opposed to blanket bans on texting while driving, he’s open to such a measure for teen drivers as a special case.

Thursday was simply an informational hearing for the teen driving task force. Tieszen and Rep. Peggy Gibson, D-Huron, will now gather co-sponsors for the bills and formally introduce them. Then they’ll be assigned to a committee and have a formal hearing and vote.

Even as the Minnehaha County Republican Party faces disputes between establishment and activist forces, something similar played out to the south in Lincoln County. There county party chairman Joel Arends — who was part of state Sen. Dan Lederman’s robocall lawsuit — lost a bid for another term to Betty Otten, the wife of state Sen.-elect Ernie Otten who has in the past supported conservative, activist Republicans such as Reps. Manny Steele and Stace Nelson. Jonathan Ellis has the story:


Joel Arends oversaw a pretty good election season as the Lincoln County GOP’s chairman. The county raised a lot of money and wrote healthy checks to its legislative candidates. It was organized and energized.

But that wasn’t good enough. Arends lost his position Saturday when party officers voted…

A pair of Ottens: Postcards from District 6 Senate candidate Ernie Otten (running against Democrat Richard Schriever) and District 6 House candidate Herman Otten (running with Isaac Latterell against Democrats Michael Jauron and Joseph Weis.)

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