Dana Ferguson

dferguson@argusleader.com

Lawmakers in Pierre advanced a measure Wednesday that would allow people or organizations to discriminate against same-sex couples, unmarried pregnant women or transgender people without jeopardizing state contracts or employment.

The bill's sponsor Rep. Scott Craig, R-Rapid City, said the proposal is about protecting freedom of speech for those with conservative views, but others warned the legislation, if approved, would endorse discrimination and could put the state in violation of federal law.

The House Committee on State Affairs passed the bill on a 10-3 vote. It would prohibit the state from retaliating against people who voice beliefs that marriage should be exclusively between one man and one woman, that sexual intercourse should only occur between married couples and that gender is determined by biological sex at birth.

People who express those views would be protected from termination of employment or enrollment, loss of funding, accreditation or tax exemption in some cases, or termination of state contracts.

For example, the state would not be able to revoke funds from or deny tax breaks to a religion-based adoption agency that chose to require that couples who adopt from the group be be married and heterosexual. Cases like that have arisen in other states, the measure's proponents said, and the bill could preempt similar instances in South Dakota.

Why put discrimination to a public vote?

Conservative groups, representatives of the Catholic church and the attorney general's office testified in favor of the bill while representatives of the Department of Corrections and the American Civil Liberties Union testified against.

Matt Sharp, Alliance Defending Freedom Council legal counselor, also testified in favor of the bill and said it would allow that conservative group a guarantee of free speech that isn't completely defined under existing law.

"Adoption agencies, colleges, homeless shelters and government employees should not be forced to convert to a government-imposed belief system in order to have access to a public funding opportunities," he said

Opponents said the measure could have negative repercussions including discrimination and violation of federal rules.

Denny Kaemingk, secretary of the state Department of Corrections, said the measure would prevent the department from complying with the federal Prison Rape Elimination Act standards that require staff members protect transgender inmates.

"We cannot protect staff that have adverse reaction to these inmates," Kaemingk said. "There is no room to protect staff who say, 'I will do this,' or 'I will not do that.' Safety needs to be maintained."

Libby Skarin, policy director for the American Civil Liberties Union of South Dakota, said the measure would lead to discrimination against homosexual people, unmarried couples that engage in sex and single mothers.

She gave an example of a university official who could fire a gay employee or a pregnant single woman "under the theory that employing some individuals makes the official complicit in facilitating a sin by signing off on their paycheck."

The measure is not final. It will need to be approved by both chambers and the governor before becoming law.

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