California’s AB 2943—is it Constitutional?

California’s AB 2943 Smacks of Anti-Jewish Legislation in Hitler’s Germany
Op-ed by Mary Mack

Assembly Bill (AB) 2943 was introduced to California’s Legislature on February 16, 2018, as an act to amend Sections 1761 and 1770 of the Civil Code, relating to unlawful business practices. While ostensibly written to limit discrimination against certain business practices concerning sexual orientation change efforts, it effectively will make it illegal to buy or sell anything that promotes the view that homosexuality is an abnormal lifestyle choice. Violations of the law will be punishable under the Consumer Legal Remedies Act.

If AB 2943 becomes law, it will then be illegal to buy, sell, trade, or advertise any goods or services that oppose the homosexual lifestyle. This includes a statewide ban of religious texts (such as the Bible); radio, television, print, internet, and social media debates, blogs, posts, articles, and advertising that promotes a Christian viewpoint on homosexuality (such as the forum you are reading this on); Christian counseling services and pamphlets; Christian novels which uphold biblical values; Christian conferences like the Southern California Christian Writers Conference; and ultimately, the prohibition of all forms of Christian and Jewish religious expression, since our religions labels homosexuality a sin.

AB 2943, Section 1 (a) declares: “Contemporary science recognizes that being lesbian, gay, bisexual, or transgender is part of the natural spectrum of human identity and is not a disease, disorder, or illness.”

The “contemporary science” that AB 2943’s authors are relying upon is non-existent. According to Tia Ghose, senior writer for LiveScience, in a 2015 article titled “Being Gay Not a Choice: Science Contradicts Ben Carson,” there is not a shred of real scientific evidence to support the theory that homosexuality is a natural behavior. Ghose writes, “No studies have found specific “gay genes” that reliably make someone gay. But some genes may make being gay likelier.”

Scientific proofs do not use words like “may” and “likelier.” Use of those words reveal that a theory has not yet been proven; it is still merely a hypothesis. A scientific hypothesis is: “…an idea that proposes a tentative explanation about a phenomenon or a narrow set of phenomena observed in the natural world. The two primary features of a scientific hypothesis are falsifiability and testability, which are reflected in…the ability to be supported or refuted through observation and experimentation.” —Encyclopedia Britannica

In other words, a scientific hypothesis is an educated guess.

What AB 2943’s authors refer to as ‘science’ are studies currently being conducted in a desperate bid to make the facts fit the hypothesis—and that is not true science. The Scientific Method dictates that scientists 1) postulate a hypothesis, 2) test the theory, 3) analyze the results, and 4) either form an irrefutable scientific statement or propose a new hypothesis and continue testing. Whenever scientific testing proves a theory to be unsubstantiated, that theory must be abandoned. The Scientific Method never allows for bending the results to fit the hypothesis, or for abandoning the test results if they fail to support a theory that scientists desperately want to prove. That sort of unreasoned bias leads to very non-scientific methods. But perhaps that is what the authors of AB 2943 mean by “contemporary science”—the new non-science.

To support their “contemporary science” claims, the Bill’s authors presented a statement by the American Psychiatric Association (APA), published in March 2000, that urged medical practitioners to refrain from trying to correct homosexual behavior, citing the lack of scientific research proving any alleged benefits of conversion therapy. The APA also acknowledged the lack of evidence of any harm caused by homosexual conversion therapy, cautioning that “anecdotal reports of ‘cures’ are counterbalanced by anecdotal claims of psychological harm.”

The California Legislature wishes to impose the behavior of a small segment of society upon the entire state based upon an unproven hypothesis and anecdotal claims. They want to wipe out 6,000 years of religion because of wishful thinking and non-science.

We must test this Assembly Bill against the restrictions of the U.S. Constitution, in particular with regard to regulation of business and the free exercise of religion. Unfortunately, AB 2943 violates the basic tenets of the First and Fourteenth Amendments, which govern free speech and the free exercise of religion in the civil rights arena, and due process and equal protection in the arena of commerce and trade.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
—First Amendment to the United States Constitution

AB 2943 clearly violates the First Amendment to the U.S. Constitution by prohibiting the free exercise of religion and curtailing the freedom of Christian/Jewish speech in California. What this Bill seeks to do is ban the sale of goods or services which support the view that homosexuality is a sin. Whether or not a state government agrees with the Christian/Jewish viewpoint, it is prohibited from repressing religious expression and from denying Christians/Jews due process of the law. Due process of the law is the regular administration of the law so that no citizen is denied his/her legal rights, and which forces all laws to conform to fundamental legal principles. When scrutinized under the light of the Bill of Rights, AB 2943 fails to provide due process protections.

One way to check the constitutionality of a law is to transpose the names and circumstances and view it from the opposite angle. What if Christians attempted to introduce a law that would suppress the free speech and commercial transactions of homosexual citizens? It is likely there would be civil rights marches and gay pride parades all around the world in protest.

The Fourteenth Amendment protects individuals against wrongful action by state governments. In its gross violation of the equal protection clause of the Fourteenth Amendment, AB 2943 fails to pass even the lowest tier of the traditional ‘rational basis test’. Namely, AB 2943 is legislation that amends social and economic policies, it employs suspect classifications (i.e. identifies homosexuality as a distinct and separate class of society), it impinges on fundamental rights, and it does not serve a legitimate governmental purpose.

“In respect of civil rights, all citizens are equal before the law,” wrote Supreme Court Justice Harlan, the sole dissenting opinion in Plessy v. Ferguson (1896). That case was about racial segregation, but the same principles apply to AB 2943 today. When the Supreme Court reversed its Plessy ruling in the famous Brown v. Board of Education of 1954, it ruled that segregation itself is discrimination.

According to the Supreme Court, homosexuals and heterosexuals are equal before the law. If the state of California enacts legislation that prohibits religious groups from expressing opposition to homosexuality during any and all commercial transactions, the government is identifying homosexuality as a religious belief system. Furthermore, it is segregating society into factions based on mere differences of opinion. It is declaring governmental support of one faction over another. It denies Christians and Jews equal opportunity in the economic process by prohibiting them from buying or selling commodities and services that contain a specific religious message that the government objects to.

The muzzling of religious expression within private and public economic transactions serves no legitimate government purpose. This proposed law is blatant government sponsorship of homosexuality. It is an unconscionable attack on devout Christians and Jews. It puts an unconstitutional restraint on free enterprise, equal opportunity, and the creation of wealth, and emulates anti-Jewish legislation in pre-war Germany.

“During the first six years of Hitler’s dictatorship, from 1933 until the outbreak of war in 1939, Jews felt the effects of more than 400 decrees and regulations that restricted all aspects of their public and private lives. Many of those laws were national ones that had been issued by the German administration and affected all Jews. But state, regional, and municipal officials, on their own initiative, also promulgated a barrage of exclusionary decrees in their own communities. Thus, hundreds of individuals in all levels of government throughout the country were involved in the persecution of Jews as they conceived, discussed, drafted, adopted, enforced, and supported the anti-Jewish legislation.” —The United States Holocaust Memorial Museum’s Holocaust Encyclopedia

Compare the following to AB 2943:

“In April 1933, German…legislation sharply curtailed “Jewish activity” in the medical and legal professions.” —The United States Holocaust Memorial Museum’s Holocaust Encyclopedia

What’s next for California’s Christians and Jews? Yellow badges designating our religious affiliation?

AB 2943 claims that sexual orientation change efforts can pose critical health risks to homosexuals. There was no mention of the health risks posed to heterosexual children as young as 11 years of age who are forced by the California Education Code to explore the possibility that they might be homosexual.

Nor was there any mention of the disastrous predicament AB 2943 puts Christians in. You see, Jesus commanded believers to “go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you.” (Matthew 28:19-20) We call it The Great Commission. The health risks posed by legislation that forbids millions of Christians to obey a direct order from God far outweigh the claims of mental distress experienced by a few homosexuals due to a self-imposed lifestyle.

AB 2943 has been passed by the California State Assembly and has gone to the state Senate for a vote. A hearing has not yet been scheduled but you can keep tabs on this legislation via the California Family Council’s website at http://www.californiafamily.org/oppose-ca-ab-2943-ab-1779-and-ab-2119-reference-materials/. In the meantime, call and email your state senator and tell him/her that you want him/her to vote NO on AB 2943. You can find your senator’s contact information on the following government website: http://senate.ca.gov/senators.

Call your state senators and tell them to distance themselves from this constitutional nightmare. Demand that your representatives swear to uphold the U.S. Constitution and protect the equal rights of ALL citizens in ALL areas of life, without favoritism or prejudice.

Mary Mack is an award-winning screenwriter (Table Read My Screenplay contest, Best Fantasy Screenplay, 2015) and has taught screenwriting workshops for the California Writers Club. Mary is the Editor of The Mohahve Muse, the official newsletter of the Mohahve Historical Society, and Assistant Editor of The Inkslinger, the newsletter of the California Writers Club (High Desert). As a freelance editor, Mary has earned a reputation among her clientele as an insightful story consultant and eagle-eyed proofreader. As a freelance graphic designer, she creates logos, book covers, business cards, letterhead, and promotional material for clients across the world.
Contact Mary at mary_mack@outlook.com

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