HomeMy WebLinkAboutNon-Discrimination Ordinance Public Comment from Chris Saunders 4-24-14Page 1 of 4
April 22, 2014
Mayor Krauss
Bozeman City Commission
121 N. Rouse Avenue
Bozeman MT 59715
Re: Non-Discrimination Policy Discussion
Thank you for the opportunity to participate in this public discussion. I write in opposition to adoption of
an ordinance for the four reasons expanded upon below:
1) Contradictory to existing municipal code.
2) Assignment of special privileges is contrary to true application of equality of treatment.
3) Duplicative of existing jurisdictional authority and functions of state and federal government.
4) Lack of resources
Equality under the law is the right of all citizens. Equitable treatment of fellow citizens is the
responsibility of all citizens. A grant of special privileges or status for some citizens is not equal
protection nor is it fair. Upon hearing many of the public comments to date from both proponents and
opponents I am not convinced that there is an adequate justification to overcome the strict scrutiny to
which such an ordinance will be subject. My comments and opposition are general in nature and not
dependent on the specifics of ordinance wording. In my comments discrimination does not mean the
reasonable and appropriate distinction between different circumstances, such as greater skill qualifications
for a job.
1) The City already has a true non-discrimination ordinance in place. The City’s municipal code
addressing ethics includes the following section, emphasis is added. Any action assigning specific
privileges or status to a particular group regardless of how it is defined will be contrary to this section. An
ordinance which states that discrimination cannot be allowed against certain defined groups accepts by
implication that discrimination may be allowed so long as the discrimination is not based on a protected
area. This allows discrimination, either a restriction or the grant of extra favor, on the basis of wealth,
whether you cheer for the ‘right’ team, if you wear the ‘wrong’ clothing style, or other unfair and
irrelevant factors. This is contrary to both the principle of equal protection of the law and of the specific
language of the existing ordinance. The City should remain fully committed to fair, courteous, and
impartial treatment for all.
Sec. 2.03.510. Treatment of the public, BMC
City officials and employees represent the city government to the public. In their contact with the
public, officials and employees must bear in mind their role as public servants. Each member of
the public shall be treated courteously, impartially, and fairly. All employees and officials shall,
in the exercise of their official duties, refrain from taking any action, making of any statement, or
authoring any document that is intended to-harass, intimidate, or retaliate against any member of
the public.
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It may be argued that the application of this section is limited to only the City of Bozeman. That is correct
and appropriate. The City is barred by state law from intruding in most areas of civil relationships
between parties which do not include the City as one of the parties. See Section 7-1-111, MCA. The City
as an institution is poorly equipped to delve into these matters beyond those in which it is a direct
participant in order to accomplish its duties. See additionally comment 4.
2) The Montana Constitution provides for the protection of the law for all citizens. It prohibits
discrimination. Discrimination includes giving one group benefits or privileges which another does not
receive on the basis of inclusion in some grouping. Discrimination is the opposite of equal protection of
the laws. Regardless of intent or justification favoring one group over another, including in the name of
opposing discrimination, is not equal protection and is of itself discriminatory. It is inappropriate for the
City to engage in such actions. Not all issues are properly resolved by more regulations. In this case, the
no ordinance action alternative is the better action.
As said by Justice Brandeis of the US Supreme Court addressing freedom of speech,
“The remedy for speech that is false is speech that is true. This is the ordinary course in a free
society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the
straight-out lie, the simple truth… If there be time to expose through discussion the falsehood and
fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech,
not enforced silence.” Alvarez, 132 S. Ct. at 2550.
Similarly, adoption of a law which is discriminatory by giving special status to a limited group does not
lessen discrimination but worsens it. Rather, the better solution is for community members to advocate for
courtesy, kindness, and respect to all; even, and especially, those we disagree with.
The Montana Constitution requires equal protection of the law, Article 2 Declaration of Rights, Section 4.
The Montana Constitution further protects the exercise of religion and freedom of speech, see sections 5
and 7. As evidenced by public testimony to date significant numbers of citizens believe their legally
recognized rights are likely to be damaged by such a proposed ordinance. Section 49-2-305, MCA
prohibits the City from engaging in discriminatory practices.
Section 4. INDIVIDUAL DIGNITY. The dignity of the human being is inviolable. No person
shall be denied the equal protection of the laws. Neither the state nor any person, firm,
corporation, or institution shall discriminate against any person in the exercise of his civil or
political rights on account of race, color, sex, culture, social origin or condition, or political or
religious ideas.
Section 5. FREEDOM OF RELIGION. The state shall make no law respecting an establishment
of religion or prohibiting the free exercise thereof.
Section 7. FREEDOM OF SPEECH, EXPRESSION, AND PRESS. No law shall be passed
impairing the freedom of speech or expression. Every person shall be free to speak or publish
whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and
prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under
the direction of the court, shall determine the law and the facts.
Discrimination includes both barriers to exercise of protect rights and the grant of special benefits over
and above those available to all. Please see the definitions of discriminate and discrimination below.
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Merriam Webster dictionary
dis·crim·i·nate verb \dis-ˈkri-mə-ˌnāt\
: to unfairly treat a person or group of people differently from other people or groups
: to notice and understand that one thing is different from another thing : to recognize a difference
between things
Dictionary.com
dis·crim·i·nate [v. dih-skrim-uh-neyt; adj. dih-skrim-uh-nit]
verb (used without object), dis·crim·i·nat·ed, dis·crim·i·nat·ing.
1. to make a distinction in favor of or against a person or thing on the basis of the group, class, or
category to which the person or thing belongs rather than according to actual merit; show
partiality: The new law discriminates against foreigners. He discriminates in favor of his
relatives.
2. to note or observe a difference; distinguish accurately: to discriminate between things.
verb (used with object), dis·crim·i·nat·ed, dis·crim·i·nat·ing.
3. to make or constitute a distinction in or between; differentiate: a mark that discriminates the
original from the copy.
4. to note or distinguish as different: He can discriminate minute variations in tone.
adjective
5. marked by discrimination; making or evidencing nice distinctions: discriminate people;
discriminate judgments.
Oxford dictionaries
discrimination
Syllabification: dis·crim·i·na·tion Pronunciation: /disˌkriməˈnāSHən
noun
1 The unjust or prejudicial treatment of different categories of people or things, especially on the
grounds of race, age, or sex:
2 Recognition and understanding of the difference between one thing and another:
2.1 The ability to discern what is of high quality; good judgment or taste: ‘those who could
afford to buy showed little taste or discrimination’
2.2 Psychology The ability to distinguish between different stimuli:
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[as modifier]: ‘discrimination learning’
3) The state and federal governments have extensive legal and administrative authority and resources to
address the issues of discrimination which do arise. A review of Title 49, Human Rights, MCA shows an
authorization for complete and thorough structures to receive, investigate, and resolve complaints of
discrimination. The State of Montana Human Rights Bureau is available statewide, including in
Bozeman, to assist persons who believe they have experienced discrimination. If resolution cannot be
achieved administratively, the courts stand ready to provide relief upon proof. The US Department of
Justice and other federal agencies provide a similar national role. The field while not explicitly fully
occupied by state and federal jurisdiction is practically so. The City of Bozeman does not have the
structure, resources, or expertise to usurp these responsibilities.
This issue appears closely related to those local communities who have attempted to insert themselves
into immigration law and jurisdiction. While it may have played well in some local politics how much
good has really come from it? These areas are highly complex and require great care to avoid doing the
opposite of what is intended. If some believe that the state or federal laws or institutions are not adequate
the proper remedy is to work with their state and federal legislators to seek change.
4) In the April 21, 2014 City Commission meeting, multiple Commissioners, in the context of a
discussion about storm water control, noted the extensive financial burdens faced by the City. These
include the landfill soil gas remediation and pending suits, park land development and increased
maintenance, need for a police and courts facility, storm water control deficiencies, need for substantial
investment in the public infrastructure, and others. An adopted ordinance is a commitment of resources
for the long term. Many of the costly items listed above are legal mandates which the City may not avoid.
Others are essential for the functional health of the community. These cannot be considered discretionary.
Large increases in taxes and fees can also be discriminatory in effect as the costs fall most heavily on
those with limited incomes which may be correlated with age, medical disability, or other existing
protected classes.
The present proposal, while I believe well meant by most supporters, requires additional resources to
create and enforce. An ordinance without enforcement is worse than no ordinance as it provides at most a
hollow threat inconsistently applied; which amplifies the overall inequity of the law rather than improving
it. It becomes a legal lie, high sounding words with no substance. To enforce such laws at the state and
federal level requires entire bureaus and administrative apparatus. There is no reason to believe that
Bozeman is so unique as to not require similar assets to do the job well. As enthusiastic as the proponents
may be the fact remains that the present proposal is a discretionary choice. The City Commission must
prioritize what it commits the City to do starting with what we are legally obligated to do. Not every
proposal can go forward.
Opposition to the proposed ordinance is not support for discrimination but an opposition to a particular
approach to the issue. Thank you for the opportunity to contribute to the community discussion on this
issue. Thank you for considering my views. Thank you for your service to the community.
With Regards,
Chris Saunders