Congratulations, Wyoming! You just elected 90 honorable men and women to represent you at the capital. There they will join in a grand scrum of ideas for the next several years. That’s the republican form of government.
Having a representative republic means that instead of every law or policy being voted on directly by the entire populace, the people elect representatives to do the actual voting, arguing, compromising and persuading.
We do this because it would be impractical to have all 563,000 of Wyoming’s citizens participate in every vote, but not only so. It is also because populism doesn’t allow for thoughtful and respectful discussion.
That means our elected representatives are more than just votes, they are voices. We want them to listen to us, but we also want them to speak for us. With no way of knowing what laws and spending proposals will come up in the next few years, we want them to be able to process information, think things through, ferret out the truth and persuade one another of the best course of action.
With such a mandate, it is extremely important that they be able to speak freely — especially that they be able to articulate the truth on the most important topics of our day. Any encumbrances on their free speech, inhibits them from doing the job that you have asked them to do.
That’s why Management Council Policy 02-02 needs to be fixed. It was originally adopted 16 years ago to address sexual harassment in the Legislative Services Office (LSO). It is not even a state law, but an in-house employment policy. That’s why you have probably never heard of it. But it has metastasized beyond its original intent.
Now, it gives a subgroup of legislators the power to control what your elected representative can say. It asserts the authority to receive allegations, to investigate them and to punish them merely for speaking the wrong thing—however that might be defined. That clearly infringes not only on your legislator’s right to free speech, but also on your constitutional right to have a duly elected representative in the capital.
Mind you, Wyoming’s legislature already has a Permanent Joint Rule (22-1) that holds all elected officials accountable to the law and to the agreed-upon rules of ethics. Besides this rule, all legislators are already subject to the same state laws—including sexual harassment and discrimination—that govern all Wyoming citizens.
Management Council Policy 02-02 sets up a different set of rules, and a different way to investigate and punish them. While Joint Rule 22-1 has procedures that honor the electoral process and treat members of the Legislature differently from their hired help, Policy 02-02 lists your elected representatives right along-side LSO staff, interns and pages.
Not only this, but if an allegation is made against your elected representative, Policy 02-02(V.A.1-2) allows the accuser to choose whether he or she wants to follow the Permanent Joint Rule, or the Management Council Policy. The accused member of the legislature gets no say in the matter.
So why does the policy treat elected representatives as employees of the Management Council? Joel Funk, a reporter for the Wyoming Tribune Eagle, published an article last December answering that question. He explained that LSO Director, Matt Obrecht, doesn’t think Joint Rule 22-1 is adequate to address every form of sexual harassment.
According to the Joint Rule “sexual harassment means unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature.” This would cover “sexual assault or a pattern of behavior.”
But Obrecht thinks the joint rule is not able to deal with an “inappropriate comment.” He told Funk, “I don’t think that one comment should trigger a 22-1 investigation.” Instead, Obrecht apparently thinks that one comment should trigger an investigation under Management Council Policy 02-02.
What kind of comments are we talking about, here? What could merit “written reprimand, mandatory increased anti-discrimination or sexual harassment training, reassignment of duties, loss of legislative responsibilities or assignments, censure, expulsion or other corrective action”?
Are we talking about blasphemies against God or disgusting, profanity-laced outbursts? No, the comments proscribed by Policy 02-02 could include comments like the following:
“Children have a right to be raised by their natural mother and father.”
“We should not change Wyoming law to allow rental of women’s wombs for surrogacy, or the buying and selling of human eggs.”
“Every child born should have the right to have his or her natural mother and father listed on the birth certificate.”
“Sex is a fact that is objectively discoverable by biological science.”
“We should not allow biological males to compete in women’s sports.”
“I’m sorry, we cannot permit you, a male, go into the women’s restroom.”
These are all reasonable and scientifically defensible statements which are both respectful and true. But since Policy 02-02 was revised last February, anybody who says such things in a legislative setting may, at the caprice of an offended party, be charged with harassment or discrimination just for speaking them.
You see, not only does the Management Council Policy assert authority over elected representatives, it also recently inserted the language of “sexual orientation and gender identity” (SOGI) as “protected characteristics.” Language like this gets inserted by special interests that want to restrict free speech. It is often rubber-stamped by people of good heart who have no desire to discriminate against anybody, but who have no idea that this language calls normal, everyday speech “discrimination.”
Ruth Neely of Pinedale was one of those good-hearted people. She served on the committee that added SOGI language to Wyoming rules for judicial ethics. Three years later she learned the dire consequences of such language. Suddenly common-sense words that she had spoken openly all her life were labeled “discrimination” and she was removed from her circuit magistracy.
Her case is one of hundreds across the country. Once SOGI language is inserted into policy it becomes a ticking bomb that can be applied arbitrarily to prosecute new “crimes” at any time. Washington state enacted its own SOGI law in 2006. But the state never prosecuted itself for failing to recognize same-sex unions. Instead, it waited seven years before prosecuting a grandmotherly florist, Baronelle Stutzman, for this new “crime” that nobody knew existed.
Since 2011 the Wyoming Legislature has debated and voted down the insertion of SOGI language into state law. It has done so for good reason. Current laws prevent discrimination based on “race, religion, color, sex, national origin, age or disability.” These are all objectively known facts that can be enforced without delving into the anyone’s inner thoughts.
SOGI language, on the other hand, bases the difference between legality and criminality on factors that can only be known to the mind of one person. What was legal yesterday may be illegal today just because I changed my mind. The law becomes a moving target wherein the very same action or comment may be acceptable today and punishable tomorrow.
Nobody can live and work in such a toxic environment. Our Management Council should be interested in making the Wyoming legislature the place where a robust and honest searching for the truth is encouraged. It should not be a place where timeless truths can be suddenly punishable by reprimand, reindoctrination, and reassignment of duties.
Thankfully, Policy 02-02 is on the agenda for the Management Council’s Cheyenne meeting on December 4-5, 2018. Every duly elected legislator should want to right these wrongs. And all voters have a vested interest in making sure that it no longer stifles the voice of their representatives.
Jonathan Lange is an LCMS pastor in Evanston and Kemmerer and serves the Wyoming Pastors Network. He can be reached at [email protected] Follow his blog at OnlyHuman-JL.blogspot.com.