Looking ahead on equality

Take action – Urge legislators to vote NO on concurrence on HB 74

With House Bill 74 – Validity of marriage through the Senate by the slimmest of third-reading margins, advocates of equality now must turn their attention to concurrence with the House – and there is hope that changes to this legislation mean no one is happy with it and it can be defeated.

The ESPC and its allies in the GLBT and legal communities urge everyone to send an email to the legislator who represents them and others they know or have a relationship with. Urge them to vote No on concurrence.

If the House refuses to concur with the Senate changes to the bill, then a conference committee will be appointed to attempt to work out differences between the Senate and the House. Urge your legislators to vote No on any compromise produced in conference committee, too.

The dispute centers around amendments made to the original bill. The House adopted an amendment that sponsor Sen. Curt Meier (R-SD3, LaGrange) declared was “circular in nature” and would have unintended effects on other legal arrangements that GLBT couples make to protect their personal and property interests. (That is Sen. Meier at right in the photograph above. He is conferring over the engrossed copy of HB 74 with Sen. Phil Nicholas of Laramie.)

At Meier’s urging, the Senate removed the amendment. The senators ultimately attached a new amendment aimed at recognizing civil unions made in other states.

That amendment, proposed by Sen. Ogden Driskill (R-SD1, Devils Tower), is being attacked by anti-GLBT forces. They have launched a weekend email messaging campaign urging members of the House to resist concurrence in order to avoid, as they clearly state in their message, “… succumbing to the Homosexual Agenda.”

“We are asking/pleading with you that you DO NOT concur with the Senate version of HB0074. If the Senate version is allowed, you are allowing Wyoming to start down the ugly and eroding path that Civil Unions will have (and has [sic] had on other states that have allowed this) on not only our generation, but our children and grandchildren,” the advocates of discriminating against GLBT people assert. (Boldface type in original.)

They go on to attack the morality of the many friends and neighbors we have who happen to be homosexuals:

“We ask that you stick to your guns, and continue to uphold Wyoming in the moral fabric that founded this country and state,” the email says. (Boldface type in original.)

This session has resounded with people claiming certain religious views for the “founders” that enables them to provide a narrow idea of the American “moral fabric.”

Do they refer to the founding “moral fabric” that safely stitched slavery into the Constitution and prohibited anyone without property from voting? Do they mean the moral fabric that forbade interracial marriage? What about founder Thomas Jefferson’s sexual relationship with his enslaved housekeeper Sally Hemmings?

These advocates of discrimination against GLBT folk insist on a moral fabric in which they choose the pattern and color that the rest of us must live with or face penalty of law.

At best, they are denying the understanding that scientific observation produced in the 20th century that human sexuality is complex with many variations, not simply a dichotomy separating men from women. The world might be an easier place to navigate if Nature was so definitive. It is not.

Again, the ESPC asks everyone to email legislators and urge them to oppose concurrence in the House – obviously, for difference reasons than the anti-GLBT crowd – and then to oppose any compromises produced in subsequent conference committees in order to kill the bill.

Still looking waaay back: Nullification

The Senate Labor, Health and Social Services Committee provided an opportunity to reach back to the speech that Mississippi’s Jefferson Davis gave when he resigned from the U.S. Senate.

House Bill 35 – Health Care Choice and Protection Act declares that the new federal health care reform law known as the Affordable Care Act is “not authorized by the constitution of the United States and violate its meaning, intent and principles as given by the ratifiers [there are those founders again] … “ and “shall be considered null and void and of no effect in this state; …”

The theory of nullification and interposition, first used by the Jeffersonian Republican party to oppose the Alien and Sedition Acts in 1798, was fully developed by Sen. John C. Calhoun of South Carolina in the 1820s in opposition to high import duties imposed by the federal government.

The South Carolinians also feared that the greater federal authority asserted to impose the high tariff ultimately could be turned against the institution of slavery.1

When Davis resigned from the U.S. Senate in 1861, he made clear that when nullification fails, secession is the next step. (Editor's note: When Davis mentions "the agent," he means the federal government.)

“Nullification is a remedy which it is sought to apply with the Union, against the agent of the States. It is only to be justified when the agent has violated his constitutional obligations, and a State, assuming to judge for itself, denies the right of the agent thus to act, and appeals to the other states of the Union for a decision; but when the States themselves and when the people of the States have so acted as to convince us that they will not regard our constitutional rights, then, and then for the first time, arises the doctrine of secession in its practical application.”2

Taylor Haynes, a write-in candidate for governor in 2010, supported HB 35 and told the committee the Wyoming legislature has the authority “to protect us” from the federal government. “They run over us,” Haynes said. “They steal from us.”

Tim Summers, lobbyist for AARP, told the committee that some difficult questions would need to be answered if the bill passes. He noted that the ACA provides funding for a state program to inform seniors of their options regarding health insurance. Summers asked if passage of House Bill 35 would mean a state employee would violate the law if he or she gave out such information.

Time ran out on the committee hearing Friday. Chairman Charles Scott (R-SD30, Casper) laid the bill back and said he would discuss with committee members what they want to do next with the bill.

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1 Paul S. Boyer, editor in chief, “The Oxford Companion to United States History” 2001.
2 Jefferson Davis’s Farewell to the U.S. Senate, Jan. 21, 1861; sunsite.utk.edu/civil-war/davisexit.html
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Speaking of the Affordable Care Act ...

House Labor rehabilitates HB 35

The House Labor, Health and Social Services Committee worked hard – and late – on a nullification act that challenges the Affordable Care Act. It is sponsored by Rep. Bob Brechtel R-HD38, Casper) and a dozen other legislators, at least a few of them itching to prove their anti-federalism credentials.

House Bill 35 – Health care choice and protection act proclaims the ACA unconstitutional and thus null and void in Wyoming. As drafted, the bill imposed a $5,000 fine and a felony conviction on any state employee, official, or public servant found to be enforcing the ACA.

But the sponsors ran into a storm of criticism from a wide variety of interest groups. Wyoming Public Employees Association lobbyist Bob Kuchera expressed worries that the bill puts state employees at risk of committing a felony if they simply went about their work of implementing the new federal law.

Sheila Bush of the Wyoming Medical Society said her members are divided in their opinion of the ACA. Nevertheless, she noted that some doctors in the state are making significant investments in health information technology with the assistance of incentives in the ACA.

“What does it say to our providers … if we say they are breaking the law by doing so?” Bush asked.

Lobbyist Tom Jones of the Wyoming Health Care Association said he believed the bill as proposed could make it legal for a Wyoming resident to refuse to pay taxes that fund Medicaid. And he said the legislative assertion in the bill that the ACA is unconstitutional is meaningless. He noted the Supreme Court reserved the right to rule on the constitutionality of all laws in the early 19th century.

The legislature’s opinion of the ACA “ … doesn’t matter in the end,” Jones said.

Lobbyists for the American Heart Association and the American Cancer Society noted the ACA brings many health benefits to people. Jason Mincer of the ACS asked, “What is (HB35)’s intent toward cancer survivors?”

Proponents said the act mirrored the Firearms Freedom Act approved last year. Rep. Keith Gingery, (R-HD 23, Jackson) pushed the committee to amend the bill to more closely mirror that bill. He offered successful amendments to change the felony crime to a misdemeanor carrying a $2,000 fine and made a number of other significant changes.

Rep. Frank Peasley (R-HD 3, Douglas) called the objections to the bill, especially fears of prosecution, “a lot of hooey.”

“We need to make a stand or we don’t make a stand,” he said. When it became clear there was no consensus on the committee over the meaning of some of its sections, Peasley later commented, “I guess we have to pass this bill before we know what’s in it.”

That remark sparked a few guffaws in the committee room and a retort from Chairman Elaine Harvey, who said Congress passes bills it does not understand, not the Wyoming legislature.

“I read this bill as the state is not going to go out and participate,” co-sponsor Rep. Lorraine Quarberg, (R-HD28, Thermopolis) said, and would refuse to allow state employees to enforce the bill. She argued that it does not say doctors cannot take grant money available because of the ACA without committing a crime.

That comment prompted Harvey (R-HD26, Lovell) to note that the state also cannot stop the IRS from impounding property to enforce the IRS code. Quarberg replied that the state needs to stand up to the federal government.

“This is a gutsy move,” replied Quarberg. “You dig down deep.”

Gingery pushed his amendments through, including one that pared down the list of those specifically in position to be accused of a felony. He trimmed wording that said “Any official, agent, employee or public servant of the state of Wyoming” would be found guilty of a felony if they attempted to enforce compliance with “this article.”

As the bill left the committee it said simply “Any public servant” who tried to enforce compliance with the ACA as defined in HB35 would be guilty of a misdemeanor.

Though he took some heat, Peasley may be right that at least some of the committee members did not understand the effect of what they did until they review the amendment on the House floor.

The bill was narrowly approved on a 5-4 vote. Rep Gerald Gay (R-HD36, Casper), Rep. Matt Green (R-HD45, Laramie) and Rep. Hans Hunt (R-HD2, Newcastle) joined Peasley and Gingery in supporting the bill.

Rep. Joe Barbuto (D-HD48, Green River), Rep. Bernadine Craft (D-HD17, Rock Springs), and Rep. David Miller (R-HD55, Riverton), joined Harvey in opposing the bill.

Quick notes on Wednesday action on bills of interest –

Senate File 3 – Campaign finance – organizations was approved in the Senate’s Committee of the Whole with a disclosure amendment that will require corporations and other organizations engaging in independent expenditure campaigns to name their top three donors in the advertisements they buy. The Senate seemed a little uneasy about how it will work, so we’re watching for amendments that might ease disclosure needed to keep elections honest.

Senate File 14 – Counties – election districts likewise made it through first reading. We still have fears that the “flexibility” in the bill allows counties to establish a combination of at-large and single-member districts is subject to mischief. At worst, in counties with a substantial minority population, it could lead to a “political quarantine” of the minority group. Sen. Wayne Johnson, R-SD 6, Cheyenne, mentioned similar concerns in comments on the floor.

Health Care Freedom resolutions – The legislature is determined to send a message to Washington, D.C. and the rest of the country that it intends to resist the Affordable Care Act passed by Congress last year. The Senate Judiciary Committee approved a heavily amended version of SJ 2 which would place a constitutional amendment on the 2012 ballot that asserts the federal government has never been granted the power to make decisions regarding lawful healthcare services. That power is reserved to the state of Wyoming and its people, the amended version says. It says the attorney general may assist any state resident in litigation to protect the right to make those decisions. The committee included several sections lifted from SJ 3, a similar but less strident proposal. Those sections denote the Legislature’s intention to continue its own authority to mandate care under Workers’ Compensation, at the state’s prisons, and at other institutions.

Contract validity?

The Senate Judiciary Committee heard more than an hour of testimony on SJF 5 – Defense of Marriage – constitutional amendment. Proponents argued the amendment is necessary to somehow protect the institution of marriage from gays, lesbians, and transgendered people. Opponents said they’re merely seeking the same legal protections that society extends to heterosexual couples.

Jason Marsden of the Matthew Shepard Foundation said the proposal will void valid existing contracts, something the Legislature simply would not allow to happen to existing business contracts.