Critique of New York State Sexual Orientation Anti-Discrimination Act (S.O.N.D.A.) Senate Bill S720
(Scheduled for Vote on December 17, 2002)
By Rabbi David Eidensohn
Director
of the National Non-Sectarian Council of Pro-Family Activists
CONTENTS
False Promise of a General Religious Exemption
A False Phrase in S720 Education Exemption Sections 16, 17
Threatening Traditional Religion
Summary
The foreword summary of S720 states: "Prohibits discrimination based on sexual orientation… preserves an exception for religious institutions or organizations based on religious principles." A careful reading of the bill's text reveals this to be false. This bill does apply sexual orientation discrimination laws to religious institutions. It also contains the seeds of declaring the bible a hate book and religious people inciters. This bill will demonize the traditional family's right to raise a child. It forces people who do not want to know about other people's sexual life to watch others and listen to others who revel in the revelation of such. The traditional family and school cannot survive an environment devoid of discrimination regarding sexual behavior. We supervise our children's movies; how can we allow propinquity to people who teach the opposite of our family code? Must we hire those whose sexual proclivities will disrupt the smooth functioning of a business? This bill violates the most sacred human right, to choose an environment conducive to conventional family and morality.
We therefore ask that this bill not be
approved.
S720 and all Human
Rights Laws derive their fundamental principles from the Executive Law.
Therefore we must examine the text of the Executive Law as well as the wording
of S720. We will see that neither of them offers religious organizations the
explicit exemption promised by the Senate in this bill.
After SONDA, What?
To understand the impact the SONDA bill will have on the lives of traditional people, we must consult two laws, one, the Human Rights Laws, beginning with Section 290 of the Executive Law, and two, the Sexual Orientation Non-Discrimination Act, Senate Bill 720, or S720. Let us begin with the Executive Law. In Section 290 we find that "Prejudice…menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants." Thus, one who is guilty of bigotry is not a mere malefactor; he "threatens the peace, order, health, safety and general welfare of the state and its inhabitants." Civil rights is therefore a deadly serious matter. The state is prepared to defend itself, and since bigotry destroys not only the minority but also the state, the state will strike strongly at any illegal discrimination. Whereas traditional consider sexual orientation to be regulated by historic and cultural mores, and whereas much of society discriminates upon the basis of sexual orientation, this bill posits that much or most of society will be considered enemies of the state. The bible that proscribes homosexuality and cross-dressing in no uncertain terms will now be incitement.
Because the state considers prejudice such a threat, it created, in the Executive Law beginning with Section 290, remedies for prejudice. In the law as it stands, before SONDA, the bill proscribes preference on the basis of race, creed, color, national origin, sex, age, disability, marital status, and familial status. SONDA would add "sexual orientation" to the list of protected minorities. What does "sexual orientation" mean? In S720, or SONDA, Chapter One Section3(27) we find a definition: "The term 'sexual orientation' means heterosexuality, homosexuality, bisexuality or asexuality, whether actual or perceived. However, nothing contained herein shall be construed to protect conduct otherwise proscribed by law." All sexual conduct, in other words, is protected, unless proscribed by law. This means that if two men want to act as lovers in public, since they break no law, this action cannot be used to refuse to hire them or to refuse them as tenants. Furthermore, if we know that a man stares with lust at a child, and want to refuse him a rental, we cannot, because it is not against the law to stare at a child with lust, unless such staring is of a very unusual nature, and even then, the law is not clear. If a man seeks out children and converses with them, goes for rides with them, caresses them in a way not proscribed by law, we know that he may be a threat to children. We assume that he has sexual lust for them, and today we may refuse to allow him to work with our children or to rent an apartment in our home near them. If SONDA passes, we may not refuse him employ as a teacher or babysitter, bus driver or helper in a nursery school. We could not refuse him the right to adopt children, because he has done nothing proscribed by law. In other words, SONDA destroys the most important right in the world, to protect our children from sexual abuse according to our understanding. SONDA would allow every child molester to force us to prove that he was breaking the law in his sexual searchings. This is impossible. If we cannot rely upon our intuitive ability to spot a threat to our children, we have lost our children.
We hasten to mention that we are not talking about strangely clad men from Mars. In every neighborhood, including the religious ones, there are people whose genetic, biological and emotional disposition is towards what others consider perversion and even pedophilia. Child molesters are everywhere. Schools regularly find teachers who caress children in an unacceptable manner. In every religious community there are many molesters, but before SONDA, they feared to openly prowl. Now, what can stop them from being aggressive towards children? They will immediately apply for the most interesting jobs in the church and school, and be in pedophile paradise diapering babies. This happened hears ago in New York City when scandals broke there about adults molesting nursery and kindergarten children. If people and society cannot discriminate against people they suspect of being sexually atypical in order to protect the common good, especially children, we have surrendered our children to their worst enemies. The results, of course, will be parents either surrendering to the law, or committing violence. Parents, historically, have not been noted for passivity regarding pedophilia. This bill will produce many results that will infuriate not just parents, but others. The drift towards the right began by Civil Rights Laws in the fifties will become more pronounced, until government will be completely hated by perhaps a majority of people. Nobody knows what that will mean.
Can a business refuse to employ a woman who is known to arouse married men? Now it can. After SONDA it will not able to discriminate over sexual orientation. We know that propinquity determines who we mate with. If every man and woman who rushes people and leaves them in the lurch can do their thing, our businesses and society will be in turmoil. The last and most sacred rights of human beings, to protect themselves from unwanted sexual advances, will be obviated.
Chapter I Section 4(8) calls for volunteers to seek out discrimination. Would you like ACT-UP to visit your store and domicile?
Even if you only ask about someone's sexual orientation in considering employ, you have broken the law (SONDA Chapter I Section 6(d) ). Also, if you inquire about someone's sexual practices to rent a home that receives any government assistance, you have broken the law (SONDA Chapter I Section 8( c ).
If you refuse to rent to two men who look hideous in their unusual sexual orientation, you have broken the law. (CH I Section 11 5a1)
There is an exemption for one who owns a home and has an extra apartment, if the building is in his name. (Certain other exemptions for same-sex tenants or the elderly are listed there.)
If a protected minority comes to your business to sell you something and you won't deal with him, he can sue based on Section 13. He will have free lawyers and you won't. If you win in court he will simply find an excuse to appeal it, and his infinite supply of lawyers will break you until you pay. Insurance rates will soar, and business will be threatened.
If someone with an unusual sexual orientation dresses or acts a certain way, or says certain things that may disrupt a business, and someone in the business complains, the aggrieved may sue on the basis of Section 15(2). Anything that may be "harassment" is covered. Only the very wealthy can afford to battle the "harassed" person with his free lawyers.
In a previous piece we have discussed in detail the sections in the law about admitting students to religious schools or hiring teachers for religious schools despite a sexual orientation not approved by the religion. Here we will say simply that there is nothing in the Executive Law 296(11) and SONDA bill S720 section 16 and 17 that states explicitly that religions are exempt from accepting students and employees if their civil rights protectitive status conflicts with the religion. The exact phrasing and discussion of it is available in that piece at www.gendercentral.com.
Let us return to the SONDA Bill Section 3. It defines sexual orientation and adds, "However, nothing contained herein shall be construed to protect conduct otherwise proscribed by law." In other words, sexual orientation, homosexuality, bisexuality, etc. is protected by law. You cannot discriminate against two men acting like a man and woman in love. We will live in the same apartments with people who yesterday were considered "perverts," and today are forced upon our children and us. Anything they say or do to our children is protected, unless they break the law. What is the law?
The laws are contained in the Penal Code of New York State's Consolidated Laws. Article 263 proscribes sexual performance by a child. Article 230 forbids prostitution. Article 245 is about public lewdness, exposure and public display of sexual material. Article 235 is about obscenity and related offenses. The standards of criminality in these are such that the pervert has plenty of maneuvering room before he gets to anything illegal. Even showing a minor a pornographic film may not be a crime if said film has some artistic or literary meaning for minors. (Section 235:20(6c) ). It is discouraging to read in Article 130, Sex Offenses, Section 130(11): "Aggravated sexual contact" to a child is not what you and I would assume, but a violent physical damage of the genital area.
Public schools teach homosexuality, even at the kindergarten level. Why, then, is it forbidden for a homosexual man to talk to our children about homosexuality? The answer: It isn't. The talk about homosexuality can only be proscribed if such a remark would be illegal if it was heterosexual. In Boston the schools featured workshops featuring "fisting," the practice of placing a fist in the partner's anus. If this is taught in a public school workshop, can one be proscribed from doing the same outside of public school on the basis of obscenity laws? If we study the standards of obscenity in the Penal Code Section 235, we are not encouraged. Furthermore, the standards of the public in these matters are always declining. For a child of decent parents, the prevalent social standards are probably far below the bar. Thus, the only protection we have of protecting our children's innocence is to bar their exposure to people who may talk about certain things. This bill will destroy that opportunity.
As bad as the bill is for breaking the right of a parent or person to an environment free of revealed and ruinous sexuality, the bill has ominous overtones that can lead to even worse things. Some of these are covered in the first SONDA piece at www.gendercentral.com.
Before SONDA, perversion meant unnatural sexuality and orientation. The state supported family and traditional values. SONDA will demonize family values and support perversion. The bible will be hate. Gay foaming-at-the-mouth lies and hatred about religious and biblical people (homophobes, nazis, etc.) will be peace and love. SONDA will put decent people in the closet and let everything else out. SONDA will not immediately ruin families, nor will it, the first day, destroy religion. It will, however, accelerate the slide down the slippery slope that will pressure families and religion and promote the opposite. At a time where the majority of Americans do not marry and fifty percent of first marriages end in divorce, when marital children are declining and nonmarital children are exploding, SONDA enforces a trend that strikes at the very survival of society and America.
False Promise of a General Religious Exemption
The foreword summary of S720 states:
"Prohibits discrimination based on sexual orientation… preserves an
exception for religious institutions or organizations based on religious
principles." After the text of the bill, a Summary of Provisions is
provided. Regarding Section 16 and 17, the education sections, it reaffirms the
exemption of religious educational institutions and invokes the religious
exemption contained in the Executive Law 296(11). The bill thus advertises
itself as one innocuous to the function of parochial schools and similar
religious endeavors. A careful reading of the text of the Executive Law and
S720 reveal that the above assurances are false.
Before we analyze the
text, however, let us note that an explicit exemption for religious
institutions for the purposes of Human Rights may be unconstitutional. The
failure of the Religious Freedom Restoration Act reveals a political climate
unlikely to accept the explicit exemption promised by the sponsors of S720.
Even a restricted blanket exemption ["sexual orientation provisions do not
apply…"] might not survive the courts. Therefore, the promise of this bill
to religious organizations, even if it were valid in the legislative process,
would not in reality be a solace to those who would lose in court.
If the authors of the
Executive Law and S720 wanted to exempt religious organizations from Human
Rights Laws, they must write: "These laws do not apply to religious
organizations." They said, however, no such thing. What they did write
leaves considerable leeway for interpretation, meaning that the Bill and the
Executive Law in its present form must be clarified in Courts, leaving in
suspense the operation of financially strapped institutions until years and
millions of dollars are spent reaching a final conclusion (hopefully) at the
highest level.
Let us begin with the
Executive Law, quoted in S720, as the premise for religious exemptions. In
Executive Law 296(11) we find: "Nothing contained in this section shall be
construed to bar any religious or denominational institution…from limiting
employment or sales or rental of housing accommodations or admission to or
giving preference to persons of the same religion or denomination or from
taking such action as is calculated by such organization to promote the
religious principles for which it is established or maintained." The religious
exemption is thus comprised of two phrases. One, for "persons of the same
religion." This means that Catholics may discriminate against Protestants.
It does not say that Catholics may discriminate against any individual because
of age, race, creed, color, national origin, sex, disability or marital status.
In other words, a religion, by definition, discriminates on the basis of
belief. One who does not share those beliefs can be banned from the
institution. One who does share the beliefs, however, cannot be banned from the
institution on the basis of those categories considered protected minorities.
Once all sexual orientations are classified as protected minorities a religion
would not prevail in discriminating against them, even for religious reasons,
just as it would probably not prevail to discriminate on the basis of age,
race, creed, color, national origin, sex, disability or marital status.
We would therefore not be able to discriminate against co-religionists
who were homosexual or whose heterosexual sexual practices
conflicted with our religious values once these are protected by Human Rights
Laws.
Phrase two of the religious exemption
states: "or from taking such action as is calculated by such organization
to promote the religious principles for which it is established or
maintained." What does this mean? Does the law protect a religion that
discriminates on the basis of race? Does the law protect a religion that
discriminates against the handicapped? Surely not. Even if the law promised
such, the courts would disagree. Our government in its various forms does not
accept a religion of hate. The phrase therefore has some meaning in the event
that discrimination is a natural function of all religions, discriminating on
the basis of belief on a benign level of preference. To assume that this allows
religions to discriminate against a minority protected by the state is
erroneous.
The obscurity of the exemption guarantees
that a court will interpret it. A judge will be within legal rights to
interpret this phrase in its narrowest sense, and the minority will prevail.
Therefore, to promise religious organizations exemption from S720, which they
interpret to mean that they can reject
homosexuals and other sexual orientations with impunity, is a grave
mistake.
The bill does not even
bother to define what a religious institution means. Does it include a summer
camp, secular studies, and recreational facilities with a faith-centered institution?
The promise of sponsors to protect religious institutions is empty.
A False Phrase in S720
Education Exemption Sections 16, 17
The problems of the
Executive Law are compounded by a strange wording in S720 regarding religious exemptions for educational
institutions. In Section 16 we find: "The American ideal of equality of
opportunity requires that students, otherwise qualified, be admitted to
educational institutions…without regard to …sexual orientation…except that, (emphasis added) with
regard to religious or denominational educational institutions, students,
otherwise qualified, shall have the equal opportunity to attend therein without
discrimination because of race…sexual orientation." What is "except
that" saying? The bill clearly states that religious institutions may not
discriminate against students on the basis of sexual orientation. So, what does
"except that" mean? One Senate Counsel agreed that this "except
that" is an error, and should be removed. However, this "error"
is found in Section 16 line 45, and Section 17 line 14.
Here we see the
pattern begun in the foreword to the bill, promising blanket exemptions for
religious institutions, although there is no base for them in the Executive Law
or in Bill S720. "Except that" clearly means that religious
institutions are exempt. The bill goes on to say differently, but "except
that" leaves the reader with a false impression.
What does Section 16
offer in way of exemption? It says, "The bill, however, does not affect
the right of a religious or denominational education institution to selects its
students exclusively or primarily from members of such religion or denomination
or from giving preference in such selection to such members or to make such
selection of its students as is calculated by such institution to promote the
religious principles for which it is established and maintained." Two
exemptions are offered. One, a religion may select its own co-religionists and
discriminate against others in selection of students. It does not say that the
religious institution does not have to conform to the Human Rights Laws of the
State. It does not say that a religion may discriminate against someone for
sexual orientation. It says that a religious institution may discriminate
(only) in order to select students of its own religion. Secondly, it offers an
exemption for religious institutions "to make such selection of its
students as is calculated by such institution to promote the religious
principles for which it is established and maintained." What this means is
not clear. It could mean that the state accepts a violation of freedom of
speech in religious institutions, which bar statements conflicting with the
religion. It could mean that only students who accept the rituals and beliefs
of the religion be accepted. It surely does not offer an explicit blanket
exemption for religious schools regarding Human Rights. Whatever this means, if
someone listed as a protected minority challenged a religion, and said person
did nothing to antagonize the principles of the religion other than being elderly, the school would probably not prevail in
court. Surely, a school that taught the evil of being aged would not prevail in
court. A school that taught the bible, that homosexuality or adultery is an
abomination or evil, would probably also not prevail, as the religion clashed
head on with Human Rights per this law.
Threatening Traditional Religion
Section 17(3c): (It is
an unfair educational practice) "To accept any endowment or gift of money
or property conditioned upon teaching the doctrine of supremacy of any
particular race." What is race doing in the Sexual Orientation Bill? Once
this bill passes, the language "teaching the doctrine of supremacy of any
particular race" will be replaced by "teaching the doctrine of
supremacy of any particular sexual orientation." This will threaten
traditional religions that teach the supremacy of heterosexual marriage.
Traditional family
life is predicated on certain sexual standards. This bill will criminalize
these standards. The basic right of a family to protect children against any
perceived threat to their proper sexual development will be threatened by the
right of others to claim "civil rights." The sanctity of society, rooted
in family and traditional morality, will be demonized.
Traditional family
life as a religion or culture is not something done once a week in a place of
worship or gathering of the spiritual. It never ceases and is a process of life
for life. It cannot survive if it must be exposed to those whose standards are
the opposite of traditional morality.
The state with S720 puts too much of a
burden on traditional family at a time when the pressures of the culture make
people increasingly reluctant to marry and have children. We need to bolster
religion and traditional family, not pressure it.