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HB 1107: License to Beat up Gay Guys?

While boycott talk bubbles (that’s been a popular post today), I have a practical question about House Bill 1107, Rep. Rev. Scott Craig’s “religious freedom” bill: just what sort of “religious freedom” is it protecting?

Let’s read Section 2 again:

Notwithstanding any provision to the contrary, the state may not take any discriminatory action against a person, wholly or partially, on the basis that the person believes, speaks, or acts in accordance with a sincerely held religious belief or moral conviction that:

  1. Marriage is or should only be recognized as the union of one man and one woman;
  2. Sexual relations are properly reserved to marriage; or
  3. The terms male or man and female or woman refer to distinct and immutable biological sexes that are determined by anatomy and genetics by the time of birth [emphasis mine; House Bill 1107, Section 2, as passed by South Dakota House, 2016.02.08].

South Dakotans’ freedom to believe and speak what we wish about sexual matters (and notice that HB 1107 deals exclusively with sex and not with any other important issues on which one might express one’s religious or moral convictions, like a commitment to social justice or nonviolence) is already fully protected by the First Amendment. HB 1107 adds neither jot nor tittle to our effective freedom of conscience and speech.

But acts in accordance with… what does that phrase do? What “acts” is HB 1107 talking about?

Suppose one of Rep. Rev. Craig’s parishioners has a moral conviction that homosexuality is a sin. Add Section 2(1) and Section 2(2), and HB 1107 protects acts in accordance with that conviction. Does HB 1107 allow the faithful anti-Sodomite to punch a homosexual in the mouth to punish him for his sin?

Section 3 says the state can’t apply a fine or penalty against a person acting in accordance with a moral conviction about sex outside of heterosexual marriage. Section 5 says “A person may assert a violation of this Act as an action or defense in any judicial or administrative proceeding…”  and “any judicial proceeding” would seem to include the arraignment hearing a person would face when the police haul her or him to court for assault against a homosexual.

Rep. Rev. Craig and a majority of the House can’t intend to exempt literal gay-bashers from prosecution for violent crimes against homosexuals. Rep. Rev. Craig just wants to keep his godly baker friends from having to whip up wedding cakes for Adam and Steve.

But whatever Rep. Rev. Craig’s intentions, the text of his bill appears to say that if you beat the crap out of a homosexual, and you deliver that beating not because you’re mad or drunk or stupid but because you believe that homosexuality is a sin and that you have been called by God to beat the gay out of that poor sinner, the state cannot fine or penalize you.

Does freedom of religion include the right to beat up gays and lesbians? Nobody would write a law like that… would he?

Those sound like questions for Chairman and former law enforcement officer Craig Tieszen, Vice-Chair David Novstrup, former judge Arthur Rusch, and the other members of Senate Judiciary, who are the next body to get their hands on House Bill 1107.


  1. Bob Newland 2016-02-14 22:21

    It could be construed to provide cover for someone who shoots a Planned Parenthood counselor. Craig is nuts enough to write the law with that in mind.

  2. Donald Pay 2016-02-14 22:36

    I find it sad how these fake “Christians” are fixated on sex. Jesus wasn’t all that concerned about sexual matters. He didn’t say anything about this subject. On the other hand, Jesus had a lot to say about healing the sick and feeding the hungry, two issues these fake “Christians” actively oppose. I would love to drill a deep borehole in South Dakota and dispose of these fake “Christians,” a protoplasmic waste far more dangerous than high-level radioactive waste.

    Ah, I have now created a way to segue into this article from the Strib:

    It appears that the Department of Energy has hit real roadblocks trying to complete a deep borehole test in your neighbor to the north. They seem to be hinting they are looking elsewhere. Watch out South Dakota. The bait and switch may be in the works.

  3. Don Coyote 2016-02-14 23:05

    The answer to your question is in Reynolds v United States (1878) where George Reynolds was convicted of polygamy. Reynold’s defense was that US laws forbidding polygamy violated his right to free exercise of religion. He claimed his religious duty required him to have multiple wives and the penalty for his refusal was eternal damnation.

    The Supreme Court held that people cannot excuse themselves from the law because of their religion. “Can a man excuse his [illegal] practices…because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances….”

    So, no there is no religious right to beat up gays or for human sacrifice.


    The proposed law reads like a Religious Freedom Restoration law which states have been passing since the Federal version was held only to be applicable to the Federal government. Essentially RFRAs state that even a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion. RFRAs state that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

    The test that is applied is a two prong test.

    1)The burden must be necessary for the “furtherance of a compelling government interest.”
    2)The law must be the least restrictive way in which to further the government interest

    So that baker doesn’t have to make Adam and Steve their wedding cake. Ironically the Federal RFRA came about because of the use of peyote in Native American Church religious ceremonies in the case of Employment Division v Smith in Oregon.

  4. leslie 2016-02-15 06:12

    I was wondering where this model piece of draft legislation came from?

    For a court that claims it has an abiding interest in staying “out of the business of [evaluating] the relative merits of differing religious claims or the sincerity with which an asserted religious belief is held,” the Roberts court must be the most hands-on hands-off court in America, at least when it comes to religion. d. lithwick, HOBBY LOBBY, slate, 6.30.14

  5. mike from iowa 2016-02-15 06:23

    Sexual relations are properly reserved to marriage; for those of the flock that jump the fence and produce a wood’s colt,that act is not considered sexual. For the purpose of this bill,that act is hereby defined as physical education and shall be encouraged as heart healthy exercise.

  6. mike from iowa 2016-02-15 06:25

    Day 3 and Scalia hasn’t risen from beyond. So far,so good.

  7. Jenny 2016-02-15 08:08

    I’ve read that men who are most vocal against homosexuals are, a lot of times, confused about their own sexuality.

    All these legislators must not be getting enough sex in their own life they they want to oppress everyone else’s.

  8. caheidelberger Post author | 2016-02-15 08:42

    Bob, I don’t think HB 1107 would cover shooting Planned Parenthood counselors, at least not for their abortion-related work. HB 1107’s three areas of protected religious belief are heterosexual marriage, sex only within marriage, and sexual identity as biological and immutable from birth. Abortion politics don’t fit into those criteria.

  9. caheidelberger Post author | 2016-02-15 08:51

    Don Pay, there’s a deep metaphor in the feds perhaps looking for another state to drill, and South Dakota being potentially more receptive to such drilling. But I’m not going to get that far off the track…

    …because I need to beat up the other “Don” in the room, who’s trying to fluff us up again with his legal mumbo-humbo in an effort to ignore the root question. Reynolds v US is irrelevant because it was an effort to generally invoke the First Amendment in a case where the Supreme Court said specific statutes were still reasonable restrictions. HB 1107 wouldn’t let Reynolds boink two wives, because it specifically protects heterosexual monogamy as grounds for religious expression. HB 1107 specifically says that if you hold those certain religious/moral beliefs, you are not subject to other laws. If Reynolds has any relevance here, it will be to throw HB 1107 out as making every person who zealously defends heterosexual monogamy and immutable biological sex identity immune from prosecution under any other law.

    HB 1107 isn’t about the two-prong test for determining when the state may burden the practice of religion; HB 1107 empowers Rep. Rev. Craig’s co-believers to ignore laws on civil rights and public order in the expression of their beliefs. HB 1107 invites the anarchy on which the Court rejected Reynolds’s claim.

    Once again, Don Coyote, incorrect. Try again.

  10. caheidelberger Post author | 2016-02-15 08:52

    Jenny, as long as you aren’t doing it on a park bench, the sex you have is none of my business… or any legislator’s business… or any other citizen’s business except the person with you’re doing it.

  11. Madman 2016-02-15 09:41

    Cory could this also be used (in your opinion) in defense in cases involving violent behavior. If a person claims to have had a vision (claiming it to be prophetic) in which they were instructed to act on violence on a certain sect of people, could this be used as a valid legal defense?

  12. caheidelberger Post author | 2016-02-15 10:17

    Madman, I don’t think a person accused of a violent crime would have to go as far as claiming a prophetic vision. They simply need to claim a religious belief or moral conviction about heterosexual monogamy being the only proper form of marriage, extra-marital sex being a sin, and/or sexual identity being biological and immutable.

    But yes, HB 1107 appears to offer a valid legal defense against prosecution for any crime or violation of civil rights committed on the basis of such beliefs.

    —Why’d you punch that gal? Because she’s cheating on her husband.
    —Why’d you steal that gal’s sandwich? Because she’s a lesbian.
    —Why’d you give that kid detention? Because he’s having sex before marriage.
    —Why’d you fire that woman? Because she’s actually a man and had a sex-change operation.

  13. Bill Dithmer 2016-02-15 10:34

    Of course this law is stupid, but on the other side we get moronic headers like, License to Beat up Gay Guys.”

    If someone gets beat up, they get beat up. It doesnt mater if their gay, or whatever, it is a crime.

    inflammatory headlines dont do much for me.

    The Blindman

  14. M10 2016-02-15 10:57

    Don Coyote, one correction: the law holds they must sell a cake If their business is selling cakes to the public. *But* they don’t have to write glowing commentary in favor of the institution of homosexual marriage. But not selling a cake puts them in violation of federal civil rights law, state law notwithstanding. This poorly written house bill won’t stand up, unless severely modified by those with legal expertise (and even then it’s a crapshoot). Sadly, SDakota has a long history, a nationwide labeling of intolerance, even when it costs taxpayer money. Such a conflict with the “fiscal conservative” label the population here accepts and even embraces. This is done for ego purposes, not moral purposes, I’m afraid; just like back in the 1990s or early 2000s when it sued the federal government to justify some overly strict anti-abortion limit. *National* stories. The quote (before the social embrace of Internet, I realize, so it had to have been the 90s), when a woman spearheading the futile endeavor was asked why SD was going first, when the law here was the easiest shot down? She said, with pride in her voice, “Because if SDakota doesn’t file now, some other state will file first.” Yeah, some kind of justifiable rationale for furthering this state’s intolerant reputation.

  15. bearcreekbat 2016-02-15 11:37

    To the extent Reynolds is relevant, haven’t many of our religionist legislators consistently shown that they don’t believe that federal constitutional rulings apply to South Dakota by repeatedly introducing, and sometimes even passing, laws they believe to be unconstitutional?

    In any event, I do not think HB 1107 allows “the faithful anti-Sodomite to punch a homosexual in the mouth to punish him for his sin.” The Biblical remedy is more specific: “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.” Leviticus 20:13. (KJV)

    Thus a religionist following the Bible may not punch a homosexual in the nose. Instead the Bible commands the faithful to kill that person. HB 1107 provides no defense to the crime of assault, but does provide a defense to the crime of murder.

  16. mike from iowa 2016-02-15 11:48

    Blindman-I gather you don’t believe in hate crimes.

  17. Roger Cornelius 2016-02-15 12:34

    SB1107 is a Hate Crime unto itself.

  18. caheidelberger Post author | 2016-02-15 13:52

    Blindman, I appreciate your desire for honest, non-sensationalist journalism, but my headline captures exactly what HB 1107 may be after. HB 1107 in no way excuses people who beat up any guy on the street. If I beat a guy up because the guy is old, young, rich, poor, fat, thin, white, red, too grumpy, too happy, wearing plaid, wearing baggy pants, any of that, HB 1107 doesn’t offer me any get-out-of-jail-free card. But if I beat up a gay guy, HB 1107 appears to offer me a legal out. I could have given a fuller headline, like, “HB 1107: License to Beat up Gays, Lesbians, Bisexuals, Transgenders, Adulterers, Polygamists, and Extra-Marital Boinkers,” but then I start sounding like Pat Powers, who can’t come up with a concise, effective headline to save his life. The best term I can think of to describe the entire class of citizens whom HB 1107 might imperil is fornicators, since HB 1107 is largely about sex that certain religious folks find objectionable, but that term doesn’t quite encompass the assault on transgender people that HB 1107 makes.

    I agree that beating up any person is objectionable. But this bill doesn’t target any person (at least that’s what the sponsors think, as they fail to closely read the dangerously overbroad language they are trying to scrawl onto our law books); it targets specific groups of people who engage in specific behavior that certain groups find objectionable. Gay guys are at particular risk; gay guys warrant a headline.

  19. caheidelberger Post author | 2016-02-15 13:53

    BCB—Leviticus?! Uh oh! Better send some Old Testament scholars to Senate Judiciary this week!

  20. Don Coyote 2016-02-15 13:58

    @cah: “blah, blah, … who’s trying to fluff us up again with his legal mumbo-humbo in an effort to ignore the root question. Reynolds v US is irrelevant … blah, blah”

    It’s not my legal mumbo-jumbo but the Supreme Court’s holding. And Reynold’s goes to the heart of your silly assertion that HB 1107 would give those claiming religious conscious protection if they popped someone in the nose. For review:

    From Reynolds [inserting gay guys being beat up]: “….the only question which remains is, whether those who make polygamy [beating up gay guys] a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy [beating up gay guys] a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?”

    Reynolds was cited in Employment Division vs Smith using the same logic that generally applicable laws do not have to meet the standard of strict scrutiny in upholding the firing of the Native America Church adherents for their use of an illegal substance, peyote.

    Now RFRAs require the application of strict scrutiny when a neutral law of general applicability substantially burdens a person’s exercise of religion. However beating up gays would not be a protected religious practice failing the application of a substantial burden on one’s religion.

    HB 1107 may not be the best written law but your contention that it will provide legal cover for assault and battery is beyond ludicrous. And you want to be in the Legislature? God help us.

  21. caheidelberger Post author | 2016-02-15 14:12

    Don Coyote, hold on. I know you come here just to distract from the real issues (justice, equality, liberty) and slag me personally. But believe it or not, I think we’re coming to the same conclusion: HB 1107 is unconstitutional. If Reynolds has any relevance to my analysis (and analysis, actually reading bills and thinking about what their text actually means and does, is the best help your God could give you would be to put me in the Legislature to save you and this state from bad laws and losing lawsuits), it is that citizens don’t get to put their religious beliefs above the law of the land. I hope that analysis includes throwing out laws like HB 1107 that try to create that anarchic situation. HB 1107 uses absolute language, banning any fine or penalty for acting in accordance with one’s religious belief or moral conviction about the immorality of homosexuality, extra-marital sex, or transgenderism. Reynolds says HB 1107 can’t do that. HB 1107 will get South Dakota sued, and it will be thrown out on the Reynolds standard. I’m trying to save you, Don Coyote, from losing more tax dollars on stupid laws that a moment’s reflection would make the Legislature realize, “Oh, crap, we can’t do that!”

  22. Steve Sibson 2016-02-15 16:20

    Cory, you are right. We lost the First Amendment when we added the 14th. Violence may be justified by those practicing Islam, but not those practicing Biblical Christianity. Good thing we have an oligarchy instead of the original Constitutional republic. Obama will be trying to add the 5th member to that Oligarchy soon.

  23. leslie 2016-02-15 16:32

    Sibson-quit bitching and do something positive. we have what we have. dems here and in dc will keep turning this ship. campaign finance has to be 1st. remember the little old woman who walked the nation for years to get money out? the 1st thing he did was health care. stop fighting. we’ll get insurance out too. if you don’t vote across the chasm I will never speak to you again.

  24. grudznick 2016-02-15 17:05

    When Mr. H and Mr. Sibby are seated as seat mates in the legislatures and put in the same morning meetings, every bill will become an attack on the Oligarchies and the PBS will have the best entertainment ratings ever. Their votes will cancel each other out, so when you add in Reps Kaiser and Russell there will really only be 101 members.

  25. owen reitzel 2016-02-15 17:24

    don’t think Sibby will win in District 20

  26. grudznick 2016-02-15 17:37

    Do not underestimate Sibby Mr. reitzel. And it’s possible he’s planning a run from a different district, one more sympathetic to his causes. Nearby district 19 is a possibility.

  27. owen reitzel 2016-02-15 18:08

    I certainly hope not Grud. That’s my district.

  28. grudznick 2016-02-15 18:14

    Home of South Dakota’s least effective legislatures. That has to be like putting out billboards saying “Mr. Sibby, rent a room here and run!”

  29. caheidelberger Post author | 2016-02-15 22:07

    Sibby, I justify no theocrats’ violence. The only relevance of Islam to this discussion is the analogy of Sharia to 1107’s sponsors’ efforts to establish their religion’s sexual ethics as state law.

  30. leslie 2016-02-15 23:47


    THE BILL:…. a sincerely held religious belief or moral conviction that:

    (1) Marriage is or should only be recognized as the union of one man and one woman;

    (2) Sexual relations are properly reserved to marriage; or

    (3) The terms male or man and female or woman refer to distinct and immutable biological sexes that are determined by anatomy and genetics by the time of birth.



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