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JOINT STANDING COMMITTEE HEARINGS JUDICIARY PART 10 2971 - 3296 2009 002971 196 March 6, 2009 pat JUDICIARY COMMITTEE 11:00 A.M. the power to do, so we think Section 2 should be struck from the bill. Section 7, which you had a very long discussion with Dave Reynolds from the Catholic Church about earlier today, and I want to circle around back to that. And Section 17, which you've already had some discussion about, and you know, Section 17 this is why we think this bill needs to be amended. It goes far beyond the Kerrigan ruling. This is not just a mere case of legislative housekeeping. And you know, I would cite as evidence of that, no less an authority than Ben Klein when he was here testifying with Senator McLachlan, Klein himself said it's not required. The Kerrigan ruling does not require that Section 17 be repealed in its entirety. In fact, his exact words were, nothing, as I wrote them down, nothing in Kerrigan mandates its removal. You even saw a distinction between the five subsections inside the bill from Representative Lawlor when he was questioning Anne Stanback. Representative Lawlor said obviously, Subsections 4 and 5 need to be removed because they conflict with Kerrigan. That word obviously, that distinction, I think is very important. There is no good reason why Subsections, the other subsections, of course, Subsection 4 on same sex marriage, we understand where that would conflict with Kerrigan but there's no reason why the first three subsections of that bill need to be removed. 197 March 6, 2009 002972 pat JUDICIARY COMMITTEE 11:00 A.M. Representative Morris talked about condone. He doesn't like that, either. He thinks perhaps that implies some intolerance of homosexuality. I would defer on that question because my time is limited to Mark Dost later this evening, in his testimony where he zeroes in on the difference between tolerance and affirmation, a conversation that I think is very germane to the use of that word condone. But I do want to say something about Section 7. I think all the concerns raised by Dave Reynolds, and it's interesting, because on same sex marriage and related issues, many members of this Committee and certainly the Co-Chairman are on a polar opposite place than where the Catholic Church and the Family Institute are, and yet there's, I thought there was some implicit agreement, actually, in that back and forth in that, you know, Dave Reynolds' concern was that unless Section 7 is amended and strengthened, that all sorts of attacks on religious liberty will follow. And you know, going on from there what we heard were references of the equating of any misgivings about same sex marriage to racist justices of the peace. You don't want to marry black and white people. We heard references to the Protestant Reformation and what if a Protestant doesn't want to provide services to a confirmation. We heard Representative Dillon's concern that the Catholic Church to her is seemingly a bunch of old men that are obsessed with gay issues. I mean, when you can take, it's inside that sort of political milieu, that it seems to me that those sorts of attacks are going to come. The difference is, we think that's a bad thing 198 March 6, 2009 pat JUDICIARY COMMITTEE 11:00 A.M. and you're okay with it. So that's why, and you know, I doubt of my ability to persuade you otherwise. But other members of this Committee and of the Legislature at large should understand. We're not being alarmists. All you have to do is look at the testimony from when Dave Reynolds spoke, the back and forth, this is coming down. I think we both agree. The difference is you're okay with it because you think it's the equivalent of racism and we don't, and that's why we want this bill strengthened. SEN. MCDONALD: Thank you very much, Mr. Wolfgang, and I appreciate you adhering to the time or close thereto. Let me ask you a couple of questions because I certainly had more than enough time to talk to Mr. Reynolds about Section 7, but-- PETER WOLFGANG: That's why I brought my water. SEN. MCDONALD: He and I did not have a chance to really talk about Section 17, so I'm going to use this opportunity to talk with you about that, and to ask my questions of you regarding that. Now, you acknowledge that Subsection 4 does need to come out in light of the Kerrigan decision, correct? PETER WOLFGANG: Yes. SEN. MCDONALD: Okay. What about Subsection 5, which says to establish sexual orientation as a specific and separate cultural classification in society? Does that need to come out in light of the Kerrigan decision in your opinion? 199 March 6, 2009 pat JUDICIARY COMMITTEE 11:00 A.M. PETER WOLFGANG: I think arguably it does not. The specific language is, gosh, I have it here somewhere. The specific language, and you just read it, to establish sexual orientation as a specific and separate cultural classification in society. I think arguably it does not need to come out. However, as I think Representative Lawlor mentioned earlier, you know, part of the holding of the Kerrigan ruling is that same sex marriage is now, it's predicated on, we're now declaring homosexual, homosexuality or sexual orientation a suspect class like race. So in that sense, at least, sexual orientation is now a separate legal classification. The specific lesson, excuse me, the specific language of Subsection 5 is whether it's a specific and separate cultural classification. I think arguably that's a political call, and it's within the Legislature's power to say, no, we're going to keep Subsection 5. But it's the first three subsections that really jump out at me. Subsection 4 I wouldn't fight for, and I don't know if I would fall on my sword for Subsection 5, but it's an interesting question. I think there's an argument to be made to keep it. SEN. MCDONALD: In your opinion, is that a convincing argument? PETER WOLFGANG: I find it convincing. The other three subsections are far more important and I think there will be other venues. You know, it's a question if, and I should say, I have to get everything I could in my three minutes. 200 March 6, 2009 pat JUDICIARY COMMITTEE 11:00 A.M. It's not as if we're reconciled to Kerrigan like the Catholic Church in their'testimony were opposed to Kerrigan. But I think as I heard someone from your press office telling the media today that that's not what's before us today. So as a question of venue, what's before us today is what is the language that will be entered into the law to codify, to implement the Kerrigan ruling, and I think those first three subsections, if you keep those in, that's something that goes far beyond the Kerrigan ruling. SEN. MCDONALD: Well, to be clear, there is a part of this bill that is intended to bring our statutes into compliance with the Kerrigan ruling, but there's nothing in the Kerrigan ruling that required us to migrate civil unions over into marriages, right? And we're doing that in this bill, too, correct? PETER WOLFGANG: Yeah. SEN. MCDONALD: So, we can hopefully all agree that the Legislature still has the role of establishing the laws that actually do define relationships, so there's nothing that would prevent us from removing these provisions from statute if that is the collective will of this legislative body. Don't you agree? PETER WOLFGANG: Well, the language you chose is worth a conversation in itself. That the, you know, we can all agree that the Legislature still has the rule to define relationships. Just in 2005 this Legislature explicitly defined marriage as between a man and a women and three years later, four judges usurped that. So I don't know. 201 March 6, 2009 pat JUDICIARY COMMITTEE 11:00 A.M. I'd like to see the Legislature have as much rule as it should in a healthy democracy and to exercise it wisely. SEN. MCDONALD: Let me just remind you, and I'm certain you recall it, this Committee actually by democratic vote approved marriage equality in 2007. Right? PETER WOLFGANG: Which then died in the House. SEN. MCDONALD: But you will acknowledge-- PETER WOLFGANG: Oh, yes. It was 27 to 15. I remember. SEN. MCDONALD: Very good. And so we can certainly acknowledge that we have the authority if it's the will of this Committee and the General Assembly as a whole to remove any of this language if we deem it appropriate and in the interests of our constituents. Right? PETER WOLFGANG: It is within this Legislature's power to make, I mean, you're a political arm of the government to make a political decision to remove a statute that I fear the removal of which would then be read as a legislative intent by either the Commission on Human Rights or maybe some enterprising judge that there will now be a mandate to teach homosexuality in the public schools and so forth. That's our concern with the removal of those three subsections. So yeah, do you have that power? Sure. Is it a good idea? No.

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