South Dakota Gov. Kristi Noem has signed a so-called religious freedom bill into law — legislation that civil rights groups say will enable discrimination against LGBTQ+ people, women, members of minority faiths, and more.
Senate Bill 124 was passed by the state’s House of Representatives this month and by the Senate in February. It’s the first legislation of its kind to be signed in this legislative session.
It bars the state or any of its cities or counties from taking action that would “substantially burden a person’s exercise of religion” unless there is a compelling government interest to do so, and if so, the state must choose the least restrictive means of acting on that interest. Its supporters have said its purpose was to protect churches from closure during the COVID-19 pandemic — although Noem did not order any churches or any secular entities to close — but LGBTQ+ activists say it is so broadly written as to enable discrimination against anyone who offends an individual’s or institution’s religious beliefs. It is similar to the 2015 Indiana law signed by then-Gov. Mike Pence that drew backlash and had to be amended.
“Religious liberty is important; that’s why it’s already protected in the Constitution,” Janna Fairley, communications director for the American Civil Liberties Union of South Dakota, told The Advocate via email. “But it shouldn’t be used to discriminate. We’re deeply disappointed to see this bill signed into law and are concerned that it will be used to justify harm to already vulnerable communities. No one should be turned away from housing, health care, or critical social services because of who they are.”
The ACLU of South Dakota had voiced opposition to the bill, noting how so-called religious freedom laws have been used as excuses for discrimination in other states. Among the examples it provided to state lawmakers: A Minnesota landlord cited his religious beliefs in refusing to rent to an unmarried couple; an Oklahoma police officer refused to attend a law enforcement appreciation event held by a Muslim group or direct other officers to attend it; an Idaho man would not provide a Social Security card in applying for a driver’s license because, he said, it was against his religion.
The group had urged the South Dakota legislature to change the wording of the bill so that it applied only to government treatment of religious services, but lawmakers did not do so.
The South Dakota measure is one of more than 20 religious freedom bills that have been introduced in states around the country in this legislative session. Most such bills are modeled on the federal Religious Freedom Restoration Act, enacted in 1993 to protect private religious observances from government interference. But in recent years states have weaponized bills like these with the intent of enabling business owners or even government employees to refuse to provide goods or services to anyone who offends their religious beliefs.
The most recent RFRAs to be enacted was Indiana's in 2015 and Mississippi's in 2016, the Human Rights Campaign notes. “Governor Kristi Noem is taking on the mantle then-Governor Pence assumed as the face of LGBTQ discrimination,” HRC President Alphonso David said in a press release. “While she may see discrimination as a path to the national far right spotlight, she should understand the damage she is doing to the state of South Dakota and LGBTQ people who are simply looking to live their lives free of fear and exclusion. South Dakotans believe in religious liberty and LGBTQ equality — those two values are not mutually exclusive. Governor Noem is risking economic, legal, and reputational harm to South Dakota by signing a law that takes the state backwards, all while South Dakotans continue to suffer the severe consequences of her absolute failure to act to curb the COVID-19 pandemic in the state.”
Noem is also planning to sign a piece of anti-transgender legislation, aimed at preventing trans females from participating in girls’ and women’s school sports. In a press conference this week, Noem denied that the bill had anything to do with transgender people but said it was simply intended to protect women’s sports. Mississippi Gov. Tate Reeves signed a similar bill into law on Thursday.