Exactly two months before Omar Mateen walked into an Orlando, Fla., gay bar and mowed down 49 innocent victims with a weapon of war, a group of law professors contemplated the incomprehensible.
Asked to analyze the potential legal effects of a proposed amendment to the Missouri Constitution, 15 legal scholars concluded that Senate Joint Resolution 39 would enshrine legalized discrimination against gays and lesbians into the very document that is supposed to protect civil rights for all.
The law professors, from Washington University, St. Louis University, the University of Missouri-Kansas City and Columbia University in New York, outlined in detail in an April 12 memo how passage of the amendment would make gays and lesbians second-class citizens in Missouri, all in the name of allegedly expanding religious freedom.
People are also reading…
But that wasn’t the worst thing SJR 39 would have done, they said.
It might have legalized murder.
Here, Elizabeth Sepper, an associate professor of law at Washington University, explained it best in an email to various lawmakers.
“Even the murder of a same-sex couple could be shielded from municipal and state prosecution if committed by a member of a ‘religious organization’ and motivated by a religious belief about marriage,” Sepper wrote about the possible effects of SJR 39.
The resolution ultimately died in a House committee, influenced in part by heavy lobbying against it from business organizations that feared economic boycotts of Missouri. But it’s worth noting that it passed the Missouri Senate without a single Republican voting against it. And after the law professors pointed out its various drafting problems, lawmakers never responded by trying to fix the legislation.
There’s little doubt that Republicans will bring some version of the legislation back to Missouri next year. Before they do, they should remember Orlando.
What was a legal exercise in hypotheticals is now as real as the blood on the Pulse nightclub floor.
The example the law professors imagined was somebody from the gay-hating Westboro Baptist Church clan in Kansas perpetrating some crime against the LGBT community and being immunized from “penalty” by the state.
What actually happened in Orlando is much more grisly but fits the same legal parameters.
Mateen claimed to be a member of Islamic State, a terrorist organization that at least claims a religious affiliation to a bastardized version of Islam. According to his father, Mateen (who may have been gay himself) was motivated by a hatred of gay people, or what SJR 39 would have defined as “a sincere religious belief concerning marriage between two persons of the same sex.”
Had he lived, and had the crime taken place in Missouri, and had SJR 39 become law, there is no doubt a lawyer would have used it as an affirmative defense against murder, said state Rep. Mike Colona.
Colona, D-St. Louis, is one of the few openly gay elected lawmakers to have served in the Missouri Legislature. His efforts educating Republicans in the House about SJR 39 were key in its defeat.
In the wake of the Orlando slaughter, Colona wants those on the far right to think about the consequences of debating year after year legislation that seeks to discriminate against gays and lesbians, and now transgender people.
Colona doesn’t believe the sponsors of SJR 39 intended to draft a bill that would potentially legalize crimes against gay people. It’s absurd. But then again, the thought that the state is going to force ministers to perform same-sex weddings against their will is equally absurd, and yet that is the justification many Republicans used in voting for the bill.
“Now we have a situation (Orlando), where if we had passed SJR 39, the situation imagined by the law professors would have happened,” says Colona, an attorney. “A good lawyer would have to try to make that case.”
This is what happens when lawmakers are influenced by special interests seeking to drive wedges between Americans for the sake of their own political purposes instead of trying to solve real-world problems. Remember, the same Missouri Legislature just a couple of years ago passed a bill that would have nullified all federal gun laws in the state. That law, too, would have made it impossible for the federal agents tracking Mateen’s gun purchases following the Orlando killingsto do their jobs. Luckily for the rule of law, Gov. Jay Nixon vetoed that bit of gun madness.
Words matter, reminds Elizabeth Platt, director of the Public Rights/Private Conscience Project at Columbia University. Too often when talking about religious liberty, lawmakers use “broad, vague, language that exempts much more illegal activity than may appear at first glance.”
Orlando didn’t just change the gun debate, it highlighted in the most despicable way how real the daily battle for LGBT rights is in a country that still seeks to diminish millions of its citizens. In 2014, the Federal Bureau of Investigation reports, there were more hate crimes per capita committed against LGBT people than any other category of victim.
That’s not a hypothetical exercise. It’s a fight for life.
“Orlando is the end product of a hatred that is fostered by right-wing fundamentalism,” Colona says. “I hope this gives them pause.”