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HomeMy WebLinkAboutNon-Discrimination Ordinance Public Comment from Michael Ross 4-9-14 Michael F. Ross 4364 Glenwood Drive Mobile:(612)232-0262 Bozeman,MT 59718 E-mail:mross443@gmail,com April 9, 2014 HAND DELIVERED Mayor, Deputy Mayor, & Commissioners City of Bozeman 121 North Rouse Avenue Bozeman, MT 59715 Regarding: Public comment on non-discrimination ordinance (NDO) Dear Mayor, Deputy Mayor&Commissioners, I write this letter to share why I oppose a non-discrimination ordinance (NDO) in Bozeman as urged by the ACLU of Montana and its cohorts. In doing so, I offer the sentiment of a five-term United States senator. My aim is not to pass laws, but to repeal them. It is not to inaugurate new programs, but to cancel old ones that do violence to the Constitution or that have failed their purpose, or that impose on the people an unwarranted financial burden. I will not attempt to discover whether legislation is "needed"before i have first determined whether it is constitutionally permissible. And if I should later be attacked for neglecting my constituents "interests,"i shall reply that I was informed that their main interest is liberty and that in that cause i am doing the very best 1 can. — Barry Goldwater With this spirit in mind, please permit me to outline why an NDO undermines liberty; why it is unnecessary, unpopular, unlawful and unconstitutional. Please also allow me to share one solution to the concern. An NDO is Unnecessary NDO proponents tell emotional stories of discrimination in Montana against the lesbian, gay, bi- sexual and transgender(LGBT) community and demand we make public policy based on anecdotes.Their effort lacks significantly because of one word: data. The Montana Human Rights Bureau (HRB) does not categorize discrimination on LGBT bases. If an LGBT-related complaint is filed with the HRB it is filed as a "Sex-Female" or"Sex-Male" case. An example of a "Sex-Female" case is a woman being denied employment because she is a woman.An example of a "Sex-Male" case is a man being denied employment because he is a man (Source: HRB data manager). 1 During fiscal year 2013,there were 131 "Sex-Female" and 32 "Sex-Male" cases filed in the state of Montana for a total of 163 cases (Source: 2013 HRB Statistics in Brief). This total represents approximately 0.0163 cases for every 100 Montanans. During fiscal year 2013, there were 6 "Sex-Female" and 2 "Sex-Male" cases filed in Gallatin County for a total of 8 cases (Source: 2013 HRB Statistics In Brief).This total represents approximately 0,00863 cases for every 100 county residents. Sexual discrimination occurs in Montana in less than one tenth of one percent of the population. The data clearly supports what we already know—Montana is a tolerant state,Gallatin County a tolerant county and Bozeman a tolerant city. Furthermore,on a national level there is little evidence of housing discrimination against gays and lesbians.According to a 2013 U.S. Department of Housing& Urban Development(HUD) study, in 70.4%of cases both heterosexual couples and gay male couples received the same treatment. In 15.9%of cases the heterosexual couple received favorable treatment over the gay male couple. In 13.7%of cases the gay male couple received favorable treatment over the heterosexual couple. To summarize the HUD study, gay male couples received the same or favorable treatment in the majority of cases,84.1%. Discrimination might be said to exist in 2.2%of cases (the difference between 15.9% and 13.7%) although the data is non-conclusive (Source: "Misrepresenting Discrimination: How Much Discrimination Do Gays and Lesbians Face in the Housing Market?"). An NDO is Unpopular 85%think a Christian photographer has the right to turn down a same-sex wedding job (Rasmussen Reports,July,2013). 68% of Americans believe there are too many unnecessary laws, 19%do not and 13%are uncertain (Rasmussen Reports,July 2012). An NDO is Unlawful NDO proponents argue that sexual preference and gender identity expression are civil rights. If this is true then there is no possible justification in letting cities decide the issue for themselves. In fact,the State of Montana reserves the right to regulate private and civil relationships on a statewide basis, per Montana Code Annotated (MCA) 7-1-111. Powers denied. A local government unit with self-government powers is prohibited from exercising the following: (.1) any power that applies to or affects any private or civil relationship, except as an incident to the exercise of an independent self-government power.... This statute clearly invalidates the Missoula, Helena and Butte NDOs; ordinances that affect private and civil relationships, i.e. relationships between employers and employees, landlords and tenants, business owners and customers.These NDOs were enacted hastily and under pressure by the ACLU of Montana and its cohorts. Bozeman need not succumb to such a swift squeeze. On the contrary, lawmakers can look to the MCA and to case law in other jurisdictions for guidance. 2 For example, Lilly vs. City of Minneapolis is a case that involved a confrontation between a city's exercise of power in light of a state statute.The court decided that"A home rule charter city is exactly that—'home rule' on matters of a purely local nature.A home rule city may not exceed statutory authority by its mere fiat as was done here...." Discrimination law extends beyond a "purely local nature." It impacts Bozeman citizens, Gallatin County citizens, Montana citizens, U.S. citizens and foreign citizens who work, play and travel through our community.The state legislature has made the subject matter one of state-wide concern. As such, Montana cities like Bozeman lack the power to expand upon the field of discrimination law. An NDO is Unconstitutional NDO proponents argue that gender is determined by belief, not biology.They define gender identity as"expression, or behavior, regardless of the individual's sex at birth."This definition is subjective, self-disclosed and self-defined. It does not require objective proof. It provides no accepted standard by which to assess the legitimacy of gender identity. It does more to advance gender confusion, redefine the definition of a woman and erode sex-based legal protections for females than it does to eradicate discrimination. Such subjective and vague provisions are void on their face as repugnant to the due process clauses of the Fifth and Fourteenth Amendments and the equal protections clause of the Fourteenth Amendment of the Constitution of the United States. The following is an excerpt from an August 2011 letter addressed to the United Nations Women organization, drafted by two lesbian attorneys. I encourage you to read the entire letter by searching "'Gender identity' legislation and the erosion of sex-based legal protections for females." These definitions would allow all males—including registered sex offenders or males subject to a domestic violence order of protection— to assert "gender identity"as a means to invade female-only space. indeed, these laws provide a legal basis for males to be in sex-segregated space. It is well-documented that males as a class have a demonstrated history of harming females as a class by exploiting female biology(i.e., rape,sexual violence, unwanted pregnancy). Accordingly, definitions of"gender identity"that permit the individual to "self-identify"without any duration or medical documentation requirements present the potential for a human rights violation against all females. Tenuous definitions of gender identity are highly subjective and vague. If they are too vague for the average citizen to understand then they are void for vagueness under American constitutional law. Under vagueness doctrine a statue is also void for vagueness if the delegated authority to judge and/or administer is so extensive that it would lead to arbitrary prosecutions. Precision is necessary so that law enforcement does not act in an arbitrary or discriminatory way. But the terms gender"expression" and "behavior" are hardly precise.Such ambiguity begs the question—what are the criteria that constitute gender identity? Is surgery necessary?A person's clothing?A person's decision to identify as a male or female? Lawmakers cannot dictate laws for a group of people when the government itself is unable to define the criteria that make up that group. 3 The issue is further complicated by a person's ability to subjectively move in and out of a group. For example,there is nothing to prevent a person who historically identifies as a male to express and behave as a female in fulfillment of a self-serving or nefarious purpose.This point is illustrated by David Marcus in his recent article, "The New Definition of Women Writers." The inclusion of trans*writers suggests that a theater company can fulfill its commitment to gender parity without actually producing any plays written by people born as women. And in a more fundamental way it reduces the meaning of the word woman to whatever a man thinks it means since at any point a man can decide he is a woman and expect to be considered one. — David Marcus The Missoula, Butte and Helena NDOs invite such gender-bending twists.Their vague provisions are ripe for legal challenge under vagueness doctrine as repugnant to the Constitution of the United States,to which end... MCA 7-5-4101 stipulates that a city or town council has power to make and pass all bylaws, ordinances, orders, and resolutions "not repugnant to the constitution of the United States or of the state of Montana..." "All laws which are repugnant to the Constitution are null and void," (Marbury vs. Madison). "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them," (Miranda vs. Arizona). "An unconstitutional act is not law; it confers no rights: it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed," (Norton vs. Shelby County). One Solution We can look to the free market, non-violent community action and common sense neighborly interaction to solve this issue. Such means do not require government intervention to be effective in rooting-out bigotry. In March of this year,American Writer Sheldon Richman wrote... Should the government coercively sanction business owners who, out of apparent religious conviction, refuse to serve particular customers? While such behavior is repugnant, the refusal to serve someone because of his or her race, ethnicity, or sexual orientation is nevertheless an exercise of self-ownership and freedom of nonassociation. It is both nonviolent and nonviolative of other people's rights. if we are truly to embrace freedom of association, logically we must also embrace freedom of nonassociation. The test of one's commitment to freedom of association, like freedom of speech, is whether one sticks by it even when the content repulses. 4 But does this mean that private individuals may not peacefully sanction businesses that invidiously discriminate against would-be customers?No! They may, and they should. Boycotts,publicity, ostracism, and other noncoercive measures are also constituents of freedom of association. The free market works wonderfully when bigotry rears its ugly head. One case in point is Paula Deen who last year admitted using the N-ward decades ago.As a result, 12 companies including Random House, Walmart,J.C. Penny,Sears,QVC and K-Mart severed ties with Ms. Deen costing her tens of millions of dollars. Non-violent community action also works to expose intolerance.Just this month comedian Stephen Colbert has faced boycotts due to recent anti-Asian slurs he made on Twitter and Brendan Eich, chief executive officer of Mozilla, resigned under a firestorm of controversy and boycotts when it was revealed that he contributed to a 2008 initiative to protect traditional ma rriage. Common sense neighborly interaction also goes a long way.The Bozeman NDO online petition reads: The city of Bozeman should strive to make sure all people who live, work and visit within the city limits have the some access to these important legal protections. This is what good communities do--we look out for our family,friends, and neighbors.... NDO proponents cite the importance of neighborly interaction. In doing so, they might follow the example set by a gay couple in Indianapolis, Indiana. Earlier this year, Mike Stephens and Shane Laney asked 111 Cakery to bake a cake for their same-sex commitment ceremony. Bakery owners Randy and Trish McGrath politely declined because the event theme was in opposition to their faith.Although Mike and Shane complained about the decision on social media,they seemed content to "move on" and find another bakery. "We found someone that will do it for us, so we're going to focus on the good," Mike said. "And that's exactly as it should be," Tony Perkins, president of the Family Research Council wrote. "This is how religious liberty and the free market are supposed to work. Instead of forcing Christians to participate in these ceremonies against their will,the customers simply found their service elsewhere. As with any business policy,the market will vote with their dollars on whether they agree with the McGaths' position.And as consumers,they should have that right." Summary An NDO is unnecessary as the data shows, unpopular as the polls show, unlawful as stipulated by the MCA and supporting case law and unconstitutional per the federal and state constitutions. The citizens of Bozeman can oppose bigotry without government involvement through free market exercise, non-violent community action and common sense neighborly interaction.We must disenthrall ourselves,as Abraham Lincoln said, of the notion that government can and will solve all of our problems. 5 It is therefore my recommendation that the Bozeman City Commission resist the urge to appease the ACLU of Montana and enact an NDO. I respectfully ask you to broaden and deepen your faith in the people of Bozeman—a faith that men desire to do right, as Calvin Coolidge said —and that you refrain from "merchandising with the clamor of the hour." I appreciate the opportunity to share why I oppose an NDO. Please let me know if there is anything I can do to support your efforts. I respect the responsibility you shoulder and know, as Senator Goldwater said,that you are doing the very best you can. Sincerely, Michael F. Ross 6