By CHET BROKAW
PIERRE, S.D. (AP) — A measure that sought to prevent lawsuits against businesses that refuse to hire or provide services to gays and lesbians was rejected Tuesday by a South Dakota legislative panel after opponents said the bill was unnecessary and would send a message of hate or fear.
The Senate Judiciary Committee voted 5-2 to kill the bill, which also sought to protect people from being sued for expressing their beliefs on sexual orientation.
Sen. Jean Hunhoff, R-Yankton, a member of the committee, said the measure and similar ones introduced during this year’s legislative session seem to be focused on trying to divide society.
“Because what? We fear them? We fear what it’s going to lead to?” Hunhoff said. “I have a difficult time as a faith-based person that I’m supposed to be afraid of these people.”
If passed, the bill would have put the South Dakota Legislature on record as finding that the U.S. Constitution does not grant the federal government authority to govern speech on sexual orientation or to control businesses’ ability to employ people based on sexual orientation. The measure also said expressing the viewpoint that any sexual orientation is wrong or a sin is constitutionally protected speech.
Sen. Craig Tieszen, R-Rapid City, said the bill was flawed because it sought to have the South Dakota Legislature interpret the U.S. Constitution, something it has no authority to do.
It is similar to measures filed in other states that would allow a person or company to assert a religious freedom defense against a lawsuit. Those bills, for example, seek to prevent lawsuits against bakers, florists or others who refuse to provide services for same-sex weddings. Opponents of the South Dakota bill said businesses in the state are already free to deny service to gay or lesbian people.
The measure’s main sponsor, Sen. Phil Jensen, R-Rapid City, said the bill was necessary to protect business owners. He said in general it would protect people who believe homosexuality is wrong from being attacked by groups supporting gay, lesbian, bisexual and transgender people.
“As a follower of Jesus Christ, I am commanded to love, to love everyone,” Jensen said. “That does not mean I must condone the lifestyle choices that certain groups of people choose.”
However, Sen. Mark Kirkeby, R-Rapid City, said the measure is not needed to protect anyone, but is “a mean, nasty, hateful, vindictive bill.”
Sen. Tim Bagalka, R-Clear Lake, said he voted for the bill because it protects free speech and prevents lawsuits.
“This bill does not promote discrimination,” Begalka said.
Tom Barnett, executive director of the South Dakota State Bar, said the measure is unnecessary because people already have the constitutional freedom to speak about sexual orientation and South Dakota businesses have the right to refuse to hire someone or provide services due to sexual orientation.
South Dakota law protects people from discrimination based on race, color, creed, religion, gender and other factors. However, it does not protect people based on sexual orientation, so businesses could refuse service based on their objection to someone’s sexual orientation, Barnett said.
He said he finds two parts of the bill to be unconstitutional: one directing a judge to dismiss such lawsuits and another that declares any federal recognition of sexual orientation as a protected class would not apply in South Dakota.
Federal law takes precedence over state law, Barnett said.
He added that the bill would have sent a bad message. “Words mean something. Words hurt,” Barnett said.
Lawrence Novotny, chairman of Equality South Dakota, a group supporting gay rights, pushed for the bill to be killed. He said the state must be more accepting of gay, lesbian, bisexual and transgender people.
“We are your family members, your co-workers, your neighbors,” Novotny said.