Gay Rights Forum

I attended the gay rights forum last night here at USD.  The forum was well attended and the crowd was pretty civil considering the topic at hand is a very emotionally charged one.  The guests included lawyer and former legislator Matt McCaulley, Robert Regier, director of the Family Policy Council, Jennifer Ring, executive director of the ACLU of the Dakotas, and Barbara Himmel Roberts former legislative candidate and member of the ACLU of the Dakotas. 

First question:
Should there be limits on government efforts to legislate gay rights and who should define morality? 

Barb stated and stated that government should only legislate to protect the vulnerable and that only our creator should judge others.  She stated that minorities through time have always been addressed as a moral dilemma to others and not viewed as a person. 

Jennifer said there are limits on Congresses ability to legislate on gay rights issues namely the Bill of Rights.  Congress should be using their power to give equal protection to gays rather than to discriminate against them. 

Rob answered by saying there are limits on what Congress can do.  Nothing they do can violate the constitution but we can differ with what the constitution says though.    Liberty doesn't mean we can do whatever we want there are limits. 

Matt said that states should be allowed to make their own determination when it comes to marriage.  The federal government should not be all powerful.  Today we have more legislation from the bench than we have had in the past.  It is better to leave these decisions to those who are politically accountable rather than those who aren't.

Question two:
Should states recognize gay marriage and is the Federal Marriage Amendment the appropriate way to address this issue?

Jennifer:  States should recognize gay marriages.  The federal marriage amendment is not appropriate.  The constitution has never been amended to take rights away from people.  (she forgot prohibition)  All persons have inherent rights and it is good that we have courts to recognize these rights.  The court helps to interpret the constitution in light of 200 years of changes in human understanding.  This is better than letting Congress dictate what they want as law. 

Rob:  The constitution is not the best way to deal with gay marriage.  In this situation though judges have forced us to the point where an amendment is necessary.  If we don't courts will continue to legislate from the bench.  Nobody talks about whether courts make the wrong decision.  They have in the past and it is very difficult to get bad decisions overturned.  An amendment which must be adopted by the states is the will of the people and is more powerful than a judicial opinion. 

Matt:  This is a states rights issue.  South Dakota should pass this law if it is the will of the people. The family is the building block for states and states have an interest in protecting the family relationship to make sure children are in a family environment with one male and one female. 

Barb:  Constitutional amendments should be rare.  The struggle for equality in terms of gay rights is no different than the struggles of African Americans or Indians in the past.  Everybody has rights. 

Question three:
Should gays in South Dakota be allowed to adopt children? 

Rob:  Studies have shown that kids do best in two parent homes with both male and female role models.  Children need the influences of both males and females.  By denying them to children we are putting them at a greater risk of social problems.  This in turn harms society as a whole. 

Matt:  There is no constitutional right to adoption.  Therefore adoption is something that states should be allowed to govern.  States should be allowed to determine what is in the best interests of children.  Having both male and female parents allows children to learn from both points of view.  Just because a person is gay doesn't mean they are bad parents but kids deserve the chance to have both male and female parents to learn from.  The burden of proof is on the party who advocates change.  Right now there is not enough evidence to prove allowing adoption by gay parents is in the best interest of children. 

Barb:  Family Physicians, the National Association of Childworkers, the American Bar Association, and the American Psychological Association all support adoption by gay parents.  This is pre-judgment via ones moral beliefs.  Is it more important that each child grows up in a loving and nurturing environment or that we make a moral judgment and forbid gay adoption. 

Jennifer:  If marriage is a states right to govern states can forbid marriage between two persons with genetic defects or forbid criminals from marrying.  This is dangerous.  Adoption should be governed by the best interests of the child involved.  In most situations where an adoption by a gay couple is sought the child involved is a child of one of the partners.  It is not in the best interest of the child to forbid adoption in this situation. 

Question four:
What rights should homosexuals have in medical insurance and in making medical decisions? 

Matt:  South Dakota has lost many insurance companies in recent years.  It is important that South Dakota do what they can to keep providers here.  The issue of medical decisions can be taken care of in South Dakota under existing law. 

Barb:  Documents can be drawn up but often the government tries to take these documents away. 

Jennifer:  South Dakota's constitutional amendment proposal is bad.  It is now legal for Dr.'s to question the nature of a persons relationship.  They would have to ask whether the persons involved are in a quasi marital relationship.  This would even affect elderly persons who live together. 

Rob:  The amendment wont affect existing power of attorney laws.  The language is in the amendment because many states use different language such as civil unions.  The language in the amendment is necessary to protect the definition of marriage in South Dakota. 

Question five:
Should there be hate crimes laws to protect homosexuals? 

Barb:  Yes, hate crimes have always been around.  Most hate crimes are committed by otherwise lawful citizens.

Jennifer:  No, there shouldn't be a separate category for hate crimes.  A crime is a crime.  You shouldn't categorize one crime as being worse than another. 

Rob:  Crime in and of itself is hateful.  Governments only have authority to punish actions not emotions and thoughts.  We already punish hate by making intent part of the crime itself.  There is also a problem with defining what hate is.  A recent rally in Pennsylvania led to Christians protesting a gay rights rally to be charged with a hate crime.

Matt:  (Quote of the event:  "Time stood still because I agree with the ACLU wholeheartedly")  Hate crimes legislation creates an intellectual culdasac where we end up talking in circles about what a hate crime is.  This weeks TIME magazine says "What teachers hate about parents."  Does this qualify as "hate" for the purpose of hate crimes laws?  We should not criminalize thinking. 

Question six: 
What direction should South Dakota go with Gay Rights? 

Rob:  Homosexuality is not and should not be considered a civil right.  The courts have mentioned political powerlessness, economic deprivation, and immutability as characteristics which help define what a protected class is for equal protection purposes.  None of these categories applies to homosexuals.  This is not analogous to the struggles involved with other minority groups.  Homosexuals have a right to vote, aren't forced to sit at the back of buses, and are free to marry members of the opposite sex. 

Matt:  Dialog is important and we must continue to have dialog.  It is important to decide who should be making decisions though.  Constitutional amendments allow people to make their own judgments.  Moral decisions should be made by those who are politically accountable.  We should be encouraging legislation rather than litigation in regards to moral issues. 

Barb:  Every person has rights.  It is wrong to think that the majority should tell you what is right and what is wrong.  We need to educate one another and accept gay rights. 

Jennifer:  Dr.'s today say homosexuality is an immutable characteristic.  It is as immutable as eye color or height.  The only reason why homosexuals aren't discriminated against to the same extent as other minorities in the past is that homosexuality is not readily apparent.  Gay people should have the same rights as all other persons equal protection under the law no more no less. 

There was a question and answer period after wards which was very heated.  In particular there was a question about how marriage should be defined and where you draw the line.  Reference was made to polygamy laws in the United States and that if we redefine our definitions of marriage these laws may be affected as well.  One panelist said marriage is a state of mind, it is what makes your heart go pitter pat.  Another panelist stated that by defining marriage this way you create serious problems.  What makes a persons heart go pitter pat is not necessarily something that we as a society should recognize. 

There was also a heated exchange regarding legislation of morality.  The point was brought up repeatedly that conservatives want to impose their beliefs on others.  Rob pointed out that those pushing the legalization of gay marriage are pushing their moral beliefs as well.  I was hoping somebody would bring this up throughout the night.  Like any moral issue, both sides are pushing their beliefs in an attempt to get society to recognize and accept them.  Both sides have a moral belief on this issue and both sides want their belief to the be accepted by society.