South Dakota SB128 Would Allow Businesses To Discriminate Against Gays


South Dakota SB128 is being considered in that state’s current legislative session, and if passed it would make it explicitly legal for businesses to refuse service to gays.

It has 12 sponsors, and is currently sitting in the Senate Judiciary Committee.

An excerpt:

Section 1. No person or entity may bring suit against another person for expressing their religious beliefs on the subject of sexual orientation. The Legislature finds that vocalizing the viewpoint that any specific sexual orientation is wrong or a sin is free speech protected by the First Amendment to the United States Constitution and by S.D. Const., Art. VI, ยง 5. Nothing in this Act allows speech designed to incite or threaten violence against any person or entity.

Section 2. No person or entity may bring suit against a business for refusing to serve a person or couple based on sexual orientation. The Legislature finds that businesses are private and that their views on sexual orientation are protected to the same extent as the views of private citizens.

No private business may be compelled to employ a person based on sexual orientation. The Legislature finds that any federal recognition of any specific sexual orientation as a protected class does not apply in South Dakota and may not be enforced within the geographical boundaries of South Dakota.

The law would also expresses the sense of the state that the government can’t tell businesses who they can and cannot hire, at least when it comes to sexual orientation: “The State of South Dakota finds that the Constitution of the United States does not grant the federal government of the United States the authority to govern speech relating to sexual orientation or the right of employers to determine whom they employ based upon sexual preference or orientation.”

On one hand, I think most of us would find the idea of a business refusing to hire someone simply because he or she was gay to be pretty reprehensible. On the other hand, equally reprehensible is the situation in other states where gays have been granted the right to essentially conscript a wedding photographer or cake baker whether those people want to provide their services or not.

I find anti-gay discrimination to be abhorrent, but does any of us have a right to demand that someone else provide their unwilling service, be it a baked cake or a job at their company, under penalty of law?

I think that a person can be against anti-gay discrimination while also recognizing that in a free society, businesses and individuals should be free to associate (or not associate) as they please. One of the most fundamental aspects of freedom is the right to say no. The right to refuse, regardless of what your fellow citizens might think of your reasons for refusing.

I don’t like that some people want to discriminate against gays – I hate it, in fact – but I think it’s important to respect the right of individuals and privately-owned businesses to conduct themselves in a manner consistent with their conscience. Those that disagree have every right to protest and boycott in response.