Use Your Free Speech to Defend Others' Free Speech

As I write these words, news is just breaking that HB 135 “Government Non-Discrimination Act” is being withdrawn from consideration at the State House of Representatives. I am deeply saddened by this turn of events.

From the moment that I learned the story of Judge Ruth Neely from Pinedale (which I have written about on numerous occasions) I have been talking to my elected representatives and fellow citizens from both sides of the issue trying to address the outrageous treatment that this gentle civil servant has received at the hands of the Wyoming State Commission on Judicial Conduct and Ethics.

Focus-group-tested talking points claim that HB 135 came from out-of-state interests. They are false. I know. I was working with my elected representatives and with interested people all across the state for months before the American Civil Liberties Union came back to Wyoming (After absence, ACLU brings policy director to Wyoming, Laura Hancock, Dec. 5, 2016). 

The talking points are not only fake, they are disrespectful and dismissive of hundreds of thousands of Wyoming Citizens who care about bringing balance back to a very unconstitutional view of religious liberty.

I appreciate Senator Paul Barnard who did not dismiss my concerns. Anybody who is willing to honestly look at the facts can easily see that something fundamentally new is happening to our First Amendment protections.

Once upon a time, the First Amendment meant that all citizens could speak freely and be judged by the court of public opinion. Now, there are censorships imposed through governments at every level which filter those words and acts of expression which can be debated in public, and those which cannot.

I can still vividly remember, as a kid living in the Chicago area, when the ACLU defended the rights of Nazis to goose-step through the streets of Skokie, Illinois. Everybody knew that this was a repugnant display, intended to hurt the thousands of holocaust survivors who lived there. Even as a kid, I was outraged. 

But the ACLU defended a principle: that the First Amendment applied to all speech. They understood that false and evil speech will not prevail. And they understood that once you grant government the power to censor one person’s speech, everybody’s speech is in the crosshairs. 

That was then, this is now.

The ACLU-WY no longer believes this. In a recent press release from their two-month old website (https://www.aclu-wy.org/en/news/government-discrimination-act-overview-hb-135), they complain about two aspects of HB 135. First they object that it would prevent the government from punishing, fining, firing, and canceling the contracts of people who don’t get in line with the new orthodoxy. Second, they complain that too many people would be protected. 

The ACLU says, “This bill (HB 135) opens the door to taxpayer-funded discrimination…” Excuse me, but I think we already have that. After all, wasn’t it Pat Dixon, the attorney prosecuting Judge Neely, who declared in court that the state of Wyoming spent more than $40,000 on a “holy war” (his words) against Judge Neely. I, for one, don’t think the government should be using taxpayer dollars to fight holy wars.

What this bill was actually seeking is clear: “the government of this state shall NOT take any discriminatory action” (HB 135). When I wrote to the ACLU, pointing this out, I received the following reply: “We defend religious liberty, and don’t think the government should be discriminating against anyone.”

O.K. Let’s take that at face value. Let’s look for the actual cases where the ACLU defended religious liberty. When Atlanta Fire Chief Kelvin Cochrane was fired by the city of Atlanta because of a book on marriage that he had written for his church’s Bible study, where was the ACLU? When Sweet Cakes by Melissa, Arlene’s Flowers, Elane Photography, Hands on Originals, and numerous other artists asked for their First Amendment right to decline what they would say with their artistic expression and what they could not, where was the ALCU?

In every case, the ACLU stood against their claims. So also in Wyoming, when a Wyoming judge answered a reporter’s question by stating a view which was perfectly in line with every Wyoming statute and both the Wyoming and U.S. Constitutions, the ACLU wants her fired from every state position -- related to marriage or not! That is the ACLU’s new definition of “We defend religious liberty.”

I am writing these words from a hotel near Washington, D.C., where I have come to participate in the 44th annual March for Life on the National Mall. It’s too soon for a full count, but I will not be surprised if today’s March surpassed the previous record of 630,000 people set in 2013. 

Fathom that, Wyoming! More than the entire population of the State of Wyoming gathered at their own personal expense to walk from the Washington Monument, alongside the capitol dome, and up to the Supreme Court Building.  It is the longest running, and consistently largest civil rights march in the entire world -- ever.

And not one of the people walking will gain a single thing for themselves. They march on behalf of people they have never met, and never will meet. This is a protest in the very best sense of the word. Rather than protesting for our own benefit, more than half a million people come together to speak for others who cannot speak for themselves. 


And that brings me back to the legislative process. It is time for this country and this state to follow the example of these marchers, along with those who marched in Cheyenne on Saturday, and people like them in every walk of life. Namely, it is time to take up a cause that is not your own.

I say this first, and foremost to myself. From the governor on down, the people of Wyoming can lay aside personal and party agendas and look to secure the rights of someone other than yourself. 

As long as we are each grabbing for our own rights, nobody’s will be secure. And as long as we see only what belongs to me, we cannot see what belongs to another. Fundamental human rights are not a zero sum game. We will never secure rights for ourselves by taking them from someone else. 

The sponsors of HB 135 have said it well in their press release from January 26: “Equality and the protection of religious freedoms are not mutually exclusive… We must find a balance among our laws, ensuring both our First Amendment right to practice and live our faith each day while practicing tolerance and respect for the rights of our fellow man.”

That is my pledge to every single one of my fellow citizens. Will you join me?

Further Reading:
Rock Springs Rocket-Miner: Free Speech Should Remain Free

Musings on Cardio Room Culture

The cardio workout room at Evanston’s Recreation Center contains an array of stationary exercise equipment. All of it is oriented toward the 48 inch flat screen TV. For a dedicated few, it is a daily routine to perform a ritual on one of these machines while paying homage to the flat screened deity in the corner. 

Because all machines are deliberately pointed toward a single TV screen, there are a number of unspoken, yet inflexible rules that are observed. First off, when choosing a channel, news is always a safe bet -- preferably, uncontroversial local news, or perhaps, ESPN. 

Changing the channel towards national news tends to up the ante. This move enters the partisan fray and reduces the comfort level in the room. It also telegraphs your political predilections. Turning to CNN or MSNBC will tell your fellow exercisers that you are probably not a fan of the president elect. While turning to Fox News will almost certainly raise suspicions that you own a “Make America Great Again” baseball cap.

On rare occasions one may avoid news altogether and watch a rerun from the History Channel. But this is frowned upon. What is a definite no-no is to turn on an episode of CSI. Nobody wants to work out to a group of over-smart and edgy detectives picking through a gruesome crime scene. 

But the cardinal rule of channel surfing in the cardio room is this: Never, ever change the channel unilaterally. If there is anybody else, at all, in the room they are to be consulted in the meekest of terms. One does not simply waltz into the room and turn to your favorite program. 

If, however, the entire room is empty when you arrive, you can operate the remote with impunity. But always keep in mind the considerations outlined above. You never know who will enter next and judge your channel choices.

I actually have a fairly serious point to make by this light-hearted look at cardio room culture. The first point is that culture really does exist. It is an objective thing that governs much of our lives, quite apart from written laws, ordinances and regulations. Culture is the lubrication which helps people get along smoothly. 

This is part of the problem with our world today. Individualism is supremely interested in personal freedom to do whatever, whenever, and with whomever. It cries out, “You can’t make me be polite, or decent. This is America, and I am free to behave however I want.” 

True enough. But when we cast aside voluntary civility, we inevitably create a vacuum that must be filled with the force of law. Laws, backed up by the considerable force of government, will always be more wooden and clunky than the original culture. The subtle etiquette that once smoothed our rough edges is replaced by government that claims total control over even the slightest choices.

Imagine the outcry if the Rec. Center should suddenly feel the need to spell out the rules for the TV in the cardio room, posting them in large print on the walls, and enforcing them with fines, suspensions of membership, and public shaming. Suddenly, the good natured give and take would be replaced by an angry, by-the-book environment.

There is also another interesting phenomenon of cardio room culture that is worth looking at. Remember the rule against unilaterally changing the channel? Nobody, and I mean nobody, would dare to switch programs without consulting everyone else in the room. But that rule does not apply to the power switch.

Those of us who consider the “off” button to be a legitimate choice of programming, stand almost completely alone. I cannot tell you the number of times that I entered the cardio room and found myself in sole control of the remote. Considering my choices, I thumbed the “off” switch to enjoy a workout without the sound and fury of the flat screen deity.

No sooner had I got started when someone else walks into the room and, without the slightest hesitation, turns the TV back on. Apparently, in cardio room culture, the “off” button is not a recognized as a choice in itself, but as an open invitation for somebody else to make a choice. 

I do not mean to criticize anybody. In fact, I would be embarrassed if anybody became self-conscious around me. I am not complaining. I am observing and reflecting. Reflecting that while we live in a sea of choices, some choices are so basic that they are not even counted as choices. And those choices, once made, determine what choices remain for everyone else.

In an insightful essay, Anthony Esolen calls this the “Nude Beach Principle” (“The Illusion of Neutrality,” Public Discourse, 9-11-2014). If somebody should desire to have a beach where they can publicly swim in their birthday suit, there can be no neutral approach to the question. 

You may attempt to be neutral by saying that anybody may swim in their birthday suit, but nobody is required to. But this compromise is an illusion. If you allow even one person to swim in the buff, you are making a definite statement that such behavior is perfectly acceptable. For parents who disagree with that statement and wish to raise their family in a culture where that statement is not true, their desires have been thwarted, and that beach has now become off limits.

It is the essence of living in community to recognize that individual choices are never isolated. It is the essence of culture to recognize that permissions granted to even one person affect all persons. 

So, as we work together to build community, let us stay fully conscious of these dynamics. Let us remember that by self-discipline and deference to the sensitivities of my neighbor, I can build a culture that doesn’t require the micromanaging laws which stifle freedom. 

And let us remember that when laws do become necessary, neutrality is not always possible. Responsible public law may mean that we need to accommodate the nude bather by building a privacy fence, rather than ruin the entire beach for the community. 

Loophole Lets Rapists Sue for Custody Rights

During Christmas break of her sophomore year in high school, Ashley was raped by a 19-year-old man at her older cousin’s house. Apparently, their drinks were spiked with a date-rape drug. Neither she nor her cousin remembered any details.

Feeling ashamed and disgusted, she decided not to report the rape and try to forget it ever happened. But even those plans were shattered two weeks later when she missed her period. Since she was not sexually active, there was no question that the father of her child could only be the rapist.

Devastated, her parents took her to the police. But too much time had passed. There was no hope of convicting the perpetrator. Abortion was not even on her radar. Nonetheless, unwanted pressure to abort immediately started coming from well-meaning, but misinformed friends and relatives. She resisted the pressure.

Supported by her family, she gave birth to a healthy baby boy nine months after the assault. By then, she had long since stopped thinking of him as the child of a rapist. Instead, she loved him as her son.

Soon, however, the realities of single motherhood forced her to apply for daycare assistance, WIC and food stamps. That’s when more trouble began. The state of Wisconsin forced her to seek child support from her attacker and opened the door for her rapist to sue for custody.

Horrified, she tried in vain to close the door. She would forgo the state’s assistance if only they would not force her to share custody with her attacker. But the door, once opened, could not be closed. Whether or not she got state aid, they told her that he still had all his paternal rights.

Without a rape conviction, the law treated him the same as any other single dad. By the time her son was 2, the state was forcing her to exchange phone numbers, email addresses and meet face to face with the man who had raped her three years before. (“I Was Forced to Devise a Parenting Plan with My Rapist, LifeSiteNews, Jan. 6, 2017)

Wisconsin eventually passed legislation to close the loophole that forced Ashley into this nightmare. Now Wisconsin women who have already suffered from rape will not have to endure the additional trauma of sharing custody with their rapist.

If you think this couldn’t happen in Wyoming, think again. Just ask Aimee Kidd. She has been publicly telling her story in blogs and before the Casper City Council for months. Her daughter is now three months old, but the rapist father is still on the streets.

During the legislative session of 2015, Rep. Jim Blackburn, R-Cheyenne, introduced a bill (HB 158) to deny rapists custody rights. It sailed through the House and through the Senate Judiciary Committee. But then it died because the Senate president never allowed it to come to the floor.

Eleven years after Ashley woke up to face an ongoing nightmare, Wyoming remained in the minority of states that still allow this outrage. But this year we have another chance. Since Blackburn’s bill died, new bipartisan legislation was introduced in Washington, D.C., called the “Rape Survivor Child Custody Act” (H.R. 1257). In 2015, it was signed into law by President Obama.

This bill gives states incentives to pass legislation like Blackburn’s. For those that do, federal dollars are granted to help victims of sexual violence. In order to qualify, custody must be denied not only when rapists are convicted, but also in the case of clear and convincing evidence where a conviction was not obtained.

This provision is an important one. According to the “Rape, Abuse, Incest National Network,” only 6 out of 1,000 rapes come to a conviction. That leaves far too many victims who never experience the peace of mind of seeing their attacker behind bars. In cases like Ashley’s, Aimee’s and 99 percent of rape pregnancies, they remain unprotected from a lifetime of traumatic dealings with their rapist.

Rep. Blackburn will soon introduce “Sexual Assault Custody Rights” to the House again. Not only will it protect Wyoming women from living through a nightmare like Ashley’s, it will also qualify Wyoming to receive additional federal funds to help heal rape survivors and prevent violence against women.

This is one of those bills that provides Wyoming politics with a much-needed break from partisan arguments. With strong support from Republicans and Democrats alike, it gives us a place to come together for the sake of the most vulnerable.

Let’s tell our lawmakers to pass this bill. It is bad enough that we fail to protect so many women from the trauma of rape. The least we can do is pass a simple law to protect them and their children from further injury.

Further Reading:
Wyoming Tribune Eagle: Loophole Lets Rapists Sue for Custody Rights
Casper Star-Tribune: Committee Guts Rape Protection Bill

Noah and the Flood

Monday (January 16, 2017) is Noah Benton Markham's 10th birthday. Let me tell you his story.

Noah is a survivor, a survivor of the great flood. No, I am not talking about the flood of biblical proportions. I am talking about Hurricane Katrina. The winds and the rain of the devastating storm that inundated New Orleans threatened his life at the very earliest stages.

Even before it hit, they were worried about him. While many were leaving the New Orleans for higher ground, Noah was moved to the third floor of Lakeland Medical Center. But when almost two weeks had passed since the rest of the hospital's patients had been evacuated the hospital was still surrounded by eight feet of water. There was a growing danger that the lack of air conditioning would cause Noah to die.

Dr. Sissy Sartor, and lab technician, Roman Pyrzak sprang into action to organize a rescue team. Seven Illinois Conservation Police officers and three additional officers from the Louisiana State Police joined them in flat-bottom boats brought from Illinois.

They reached the crippled hospital on September 11, 2005. Noah along with 1400 others were found alive and taken in their boats to safety. This single rescue operation alone prevented the casualties of Hurricane Katrina from nearly doubling.

Of course, by now you have noticed some unusual features of the story. Not the least of which is: How do you fit 1412 people into three flat-bottom boats? Why did they not evacuate with the rest of the patients? And, How can Noah be a survivor of a storm that happened more than eleven years ago when he is only now celebrating his tenth birthday?

These riddles are solved when you understand that, at the time of Hurricane Katrina, Noah and his fellow refugees were very small. So small you need a microscope to see them. They were at a stage of human development which most people experience for a only few days about thirty-nine weeks before they are born.

But while most people naturally grow through the blastocyst stage and right on into the next stages of human development, Noah and his fellow refugees had been frozen in time. Liquid nitrogen canisters kept them in a state of cryopreservation.

They had been conceived in a laboratory in small groups of congenital twins. And for many, one of the twins was already born while they awaited their turn to be in the warmth of their mother's womb. For Noah, his older brother, Witt, had already celebrated his first birthday and he had four other siblings, like himself, awaiting a chance to be born.

After his rescue, Noah remained frozen for another seven months until he resumed his development inside his mother, Rebekah. For this reason Noah has been called the youngest survivor of Hurricane Katrina.

It's the kind of story that warms the heart and makes you cheer. Right out of the depths of utter devastation comes life. It also can help us, as a community, put a human face on what is all-too-often lost in abstract terms. Terms like "embryo" and "fetus" are oftentimes used to mask the fact that this is a child, a person, a Noah.

This is not a religious assertion. It is simply a scientific fact. Noah, already at the time of his rescue, was a complete, fully functional and perfectly sized human being for his stage of development.

Just as you were fully functional as a newborn, long before you could walk, so also you will remain a full human being even if you should become crippled. Your size, appearance, and abilities change constantly throughout your life. But none of this changes who you are.

Not only can science tell the difference between an eagle and a human being from the very moment of conception, so also science could tell the difference between Noah and his siblings from the very moment of conception. He was the same person on the day of his rescue as he will be on his tenth birthday.

I emphasize the science because there is a significant push today to deny human protections to these people and kill them in the name of scientific research. But the only way to do this is to first leave the realm of science and deny their humanity by some religious theory.

Arguments for embryonic stem cell research, and other practices which kill embryos, must find some non-scientific reason to deny that a human life is, in fact, a human life. The body of any human being grows and develops in a smooth, uninterrupted, continual motion.

Since no serious scientist can question the fact of being human, the battleground is typically moved to theories of "personhood." That moves it into the realm of religion. They have introduced a concept that cannot be measured scientifically, but must be taken on faith.

The problem is two-fold. First, once you claim that a human being is not necessarily a person, what additional criterion must a human being have before they have achieved personhood? Second, who is granted the power to decide when they have gotten this additional quality?

Stabs at answering the first question are all over the map. Some say personhood has to do with brain development, others with sensation, others with consciousness, and on and on. But every such theory ends up proving too much. In an attempt to de-personify an embryo, they also de-personify all kinds of people way past the embryonic stage.

Corpses at Buchenwald: U.S. Holocaust Museum

The second question is even more troubling. We have seen the horrific history of those who arrogated to themselves the right to treat categories of fellow human beings as non-persons. From slavery to the holocaust, injustice and bloodshed are visited upon the “non-persons” while the people in power lose their own humanity in the process.

But there is no need to enter into this iffy and contentious debate. We already have something obvious and intuitive: A human being is a person; and a person is a human being. There is no need for further qualification. Neither race, sex, age, development, location, strength, consciousness, or any other philosophy or religion need be consulted. It’s not complicated. It’s only human.

The Federalist: Why Refusing To Design Gay Wedding Flowers Was Barronelle Stutzman’s Act Of Love

 

Their mutual love of flowers brought them together, but Baronnelle Stutzman and Robert Ingersoll’s love for each other grew out of their love of growing things.

Today, as I write, Barronelle Stutzman is standing before the Washington State Supreme Court. Her crime? Loving a man. Don’t get me wrong—this is not an erotic or romantic story. The man she loves is not a suitor or a lover, but a customer.

Continue reading on the Federalist.

Let's Work together to Protect All Wyoming Citizens

At a Christmas party two years ago, Wendy Soto, the executive director of the Commission on Judicial Conduct and Ethics, chatted with the president of Wyoming Equality (LGBT activists) and the Wyoming Democratic Party chair over hors d’oeuvres. According to court records, they discussed a Wyoming municipal judge, Ruth Neely, and an interview she did with a local newspaper reporter. (“Judge case raises questions,” WTE, Aug. 17, 2016)

After a split decision at the 10th Circuit U.S. Court of Appeals overturned Wyoming marriage law, Soto saw an opportunity to use the new “sexual orientation and gender identity” (SOGI) language in the Code of Judicial Conduct to remove a judge who dared to dissent. As I write, the case is still waiting for a decision from the Wyoming Supreme Court.

Our state constitution has some of the strongest protections for free speech and religious freedom in America. Despite this, a few lines of SOGI language, in a document that never even had to pass a vote from our elected representatives, has the power to jeopardize those constitutional protections for every court employee.

Now, as reported by the Casper Star Tribune, (“Wyoming ranks low for LGBT discrimination protections,” Dec. 18, 2016), Reps. Cathy Connolly, D-Laramie, and Dan Zwonitzer, R-Cheyenne, are introducing a bill to apply similar SOGI language to every citizen of the state. If SOGI language had such a chilling effect on free speech when inserted into a rulebook for judges, imagine how much it can undermine First Amendment protections should it be signed into Wyoming law.

But you don’t have to imagine. Just look at those states that have already adopted such language. Consider Arlene’s Flowers in Washington, Melissa’s Sweet Cakes in Oregon, Masterpiece Cakeshop in Colorado and Elane Photography in New Mexico, to name just a few.

In each case, people running law-abiding businesses suddenly had the rug pulled out from under them. SOGI laws opened them to six-figure fines and attorney fees. Not only were their businesses jeopardized, but personal assets were as well. Private bank accounts have been seized. Homes and retirement savings have been threatened. All as a result of the very legislation that Connolly and Zwonitzer want to bring to Wyoming.

Ironically, one argument trotted out to promote this legislation claims that SOGI laws are good for business. That’s called chutzpah. Legislation that has been responsible for shuttering numerous small businesses is now touted as “good for business.”

While not good for business, it is definitely good for certain businesses. Huge corporations, uninhibited by conscience, benefit when their religiously guided competitors are fined out of existence.

These giants, in turn, threaten to boycott entire states that deviate from the latest orthodoxy. Many watch with alarm as corporate blackmail co-opts the legislative process in state after state. Careful compromises and nuanced laws are trampled underfoot by a corporate juggernaut.

Recall how the NFL bullied Arizona, Paypal stripped jobs away from North Carolina and the NCAA threatened Indiana. If that’s the kind of benefit you want from big business, it’s about to come to Wyoming.

But here’s a better idea. Wyoming Equality, instead of alarming Wyoming with boycotts, could ask the corporate bullies to stand down. With strong-arm tactics off the table, we could sit down face to face as good neighbors and figure out how to live and let live.

Normal people don’t want to punish anyone for their point of view. They only want to remain free to have their own. Normal business owners don’t want to turn away any customer. They only want the freedom to decide what they will or will not say for money.

I would love to hear any ideas that Reps. Connolly and Zwonitzer have for protecting the kinds of businesses that have been destroyed by SOGI legislation elsewhere. I am also eager to work together to protect each and every Wyoming citizen from actual injustice. But what we must not do is let hypothetical injustices blind us to the actual harm being caused by poorly designed laws.

According to the Casper Star Tribune, Sen. Dave Kinskey, R-Sheridan, thinks SOGI laws are good but “need to have wide exemptions for clergy, church employees and volunteers and not-for-profit church groups.” But laws that need “wide exemptions” are never good laws.

Besides, if “wide exemptions” are needed for church leaders, why should the people in the pew be excluded? Since when did the First Amendment stop protecting church members and only protect the clergy?

Legislators have sworn an oath to “support, obey and defend” the constitution. Wyomingites deserve legislation that will protect their constitutional rights, not undermine them.

The Supreme Court itself seems so confused by SOGI language that it still has not affirmed the constitutional rights of our judges. If even our top judges struggle to reconcile the constitution with SOGI legislation, we should not add the same flawed language to Wyoming law.

See Also:
Wyoming Tribune Eagle: shortened version