Rick Jones says bill needs to be changed mostly just to calm down Gretchen Whitmer

by: Eric B.

Tue Nov 08, 2011 at 13:26:18 PM EST

The other day, Tom McMillin said that he was open to changing the wording around in the Senate's pro-bully bill to calm down Democrats and liberals who were freaking out. One can only imagine that he was talking about Gretchen Whitmer and Kevin Epling, the man whose son -- a boy who committed suicide after being bullied -- lent his name to the legislation, since they are the most prominent of the people who object to the legislation.

Now, today, the architect of the mess gets his turn to tell his story.

Jones insists the language should in no way be interpreted as allowing bullying for any reason, but he is resigned to a changing of the language in the House, even though he sees the controversy as silly.

“To make the other side of the aisle happy, I’m sure it will be changed,” Jones said. “But I don’t see how they’re interpreting it that way.”

Translation: I was w-r-r-r-r, I was w-r-r-r-r, I was ... it's all Gretchen Whitmer's fault. If she'd stop making with the hysterics, this would all blow over.

What is being missed here is that the clause in question is an example of incompetent legislating. In order to placate hypothetical concerns, they added unnecessary language that added confusion. It's terrible legislation, and it ought to be fixed and that's not Gretchen Whitmer's fault. Nor Kevin Epling.

It's not added confusion, it's also entirely unnecessary. School districts don't need to be told by the Legislature that their bullying policies are subject to the First Amendment. The courts have already done that. The concern in question, that a Christian student (of course, that horribly put-upon tiny minority of people is always the victim) would get labeled a bully for saying that he believes that homosexuality is a sin, has already been addressed by the courts over 200 years of precedents concerning the First Amendment. Merely espousing an opinion isn't bullying; telling someone smaller, weaker and with far fewer friends than yourself day after day that they're going to burn in hell isn't merely espousing an opinion.

This is in addition to the idea that the state Legislature has a role in establishing the supremacy of the U.S. Constitution in anything. The Constitution doesn't apply because the state Legislature says it does. The Constitution applies because the Constitution is the supreme law of the land. There is no need to say so in legislation, because it already is so.

Again, this is an example of incompetent legislating. In an effort to prevent the exception rather than address the problem at hand, language was added that muddied the waters of how to apply the law. It was also needless, because the point of it assumes that Constitutional protections require the blessing of the state Legislature. And, none of that is the fault of either Kevin Epling or Gretchen Whitmer.

Update! ... First Amendment scholars agree, the bill is horribly written.

“The bill does not prohibit bullying. It does not apply to students. It does not require any student to do anything or to refrain from doing anything. It requires school boards to adopt anti-bullying policies,” Douglas Laycock, Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School. “It does not require the school boards to include language protecting First Amendment rights. In fact, subsection 8 appears to be entirely meaningless. It says that this section does not abridge rights under the First Amendment (which it could not do even if it tried), and this section does not prohibit statements of religious belief or moral conviction. But this section doesn’t prohibit any other statements either. It doesn’t prohibit bullying statements.”

This part is worth addressing, however.

“Taking it for what they probably meant, instead of what they said, how should we understand this First Amendment caveat? It is not reasonably interpreted to mean that one student can bully another as long as the bullier has a sincere religious motivation. Rather, it should be taken to mean that a statement of religious belief or moral conviction, made within the bounds of civility, is not bullying – even if the recipient of the statement claims to have foreseeably suffered great emotional distress by being subjected to this disagreeable opinion,” he said. “Can the bullier repeat the statement over and over even after the target makes clear that he does not want to continue this conversation? Generally no, in the law of workplace harassment, and I would think not in the bullying context either. Students have a right to express their views and to try to persuade people who disagree with them; the initial approach or the first statement cannot be labeled as bullying. That’s what section 8 ineptly tries to say. When a speaker persists after it becomes clear that the conversation is unwelcome, and persists to the point that he violates the bill’s vague definition of bullying (or a better drafted definition in school policies implementing this bill), then he is bullying despite his religious motivation.”

The problem with this is that bullying isn't always a single event. Usually, it's a protracted process. I'd have a hard time believing that anyone commits suicide based on a single incident. More likely, it's a drawn-out process over months during which the targets self-esteem is slowly worn down.

Do you know what else is a drawn-out process? Religious conversions, which often also start out as unwelcome conversational overtures. And, the more fundamentalist your church, the harsher the language they're apt to encourage used in converting. Shock people and terrify them with the prospect of eternal damnation to turn them to your religion. So, again, it's not holding down a kid on the playground and taking his lunch money; it's also telling a smaller and weaker kid something like, "You're going to burn in Hell, faggot" over and over again.

That sort of language, although is sounds harsh and awful, is not outside acceptability in churches that subscribe to a core philosophy based on terrifying people into line. You call someone you perceive as a homosexual a faggot and tell them they're going to burn in Hell because it is believed that you are presenting them with The Truth in a boiled down, no bells and whistles fashion. Their only path to salvation lies in denouncing their sins and living within very narrow confines.

The problem, and this is where the confusion created by this bill becomes a danger, is in small towns where those kinds of churches dominate (I'm assuming the little berg of Hillsdale works as an example). They are also least likely to have schools with bullying policies. The unnecessary ambiguity created under this legislation -- as written -- could lead to a situation where a kid is hauled before a principal under the district's new bullying policy for picking on someone smaller and weaker, blinks a couple of times at the principal, produces a handful of Chick tracts and some End Times publications, and says, "Golly, sir, that's how The Word is spread. You know. You're at church every Sunday. What about my First Amendment right to convert?"