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."
