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Is Minnesota (state) Representative Leigh Finke trying to make pedophiles into a protected class?

Aaron Walker
Aaron Walker  |  12:23 PM on May 01, 2023
AP Photo/Trisha Ahmed

‘Gays Against Groomers’ broke a pretty disturbing story the other day:

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The text that was cut off says:

This is what we have been sounding the alarm on. There is a concerted effort to normalize the sexualization of children and to legalize pedophilia. This is just one more step toward that end goal.

We need everyone to join in this fight before it is too late.

Yesterday afternoon, this prompted an extremely angry response from the transgender lawmaker in question, Leigh Finke. Mr. Finke was born as a man and ‘transitioned’ to being a woman. Mr. Finke made quite a few accusations against ‘Gays Against Groomers.’

Let’s start with the first question: Was ‘Gays Against Groomers’ telling the truth? We will start with the language of the bill ‘Gays Against Groomers’ attached as a picture to their tweet. This is what actually appears on the Minnesota legislative website for Mr. Finke’s bill (HF1655):

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Subd. 44. Sexual orientation.“Sexual orientation” means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness. “Sexual orientation” does not include a physical or sexual attachment to children by an adult.

As you can see, it is exactly as ‘Gays Against Groomers’ said it was.

To help you decode it, just understand that it is common for legislatures in America to adopt essentially the same ‘visual language’ as tracked revisions in Microsoft Word. Therefore, the plain text is the language that is in the statutes now, before the bill makes any alterations. The underlined part is new text this bill proposes to insert into the statutes. And language struck out is the text in the original law that this bill proposes to delete.

Thus, the original version of the statue says:

Subd. 44. Sexual orientation. ‘Sexual orientation’ means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness. ‘Sexual orientation’ does not include a physical or sexual attachment to children by an adult.

(Emphasis added.) If this bill became law without amendments, it would say:

Subd. 44. Sexual orientation. ‘Sexual orientation’ means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment.

The entire change to that portion of the law is a deletion, including a deletion of this part: ‘‘Sexual orientation’ does not include a physical or sexual attachment to children by an adult.’ We will call that the ‘No Pedo clause.’

Now, you might ask, ‘what is the purpose of this definition in general? How is this definition used?’ Well, it drives what counts as illegal discrimination under their human rights statutes. For instance, Minn. Stat. § 363A.08, subdivision 2, makes it illegal for employers to discriminate based on a number of factors, like ‘race, color, creed, religion’ and so on, including ‘sexual orientation.’ Minnesota’s human rights law prohibits discrimination based on sexual orientation in a wide variety of situations and settings, including housing and public accommodations.

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Does this mean that if this bill went into law, pedophiles would be protected from discrimination based on being pedophiles? We would say ‘probably not.’ This No Pedo clause is best described as an exception to the ‘main’ definition of sexual orientation, so you have to start with the main definition itself and ask if it can be interpreted as allowing courts to find discrimination against pedophiles to be unlawful in the first place. Again, it says:

‘Sexual orientation’ means having or being perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment.

In all frankness, the definition is a total mess talking about having an attachment to a specific person. We tend to think a judge would still get it and realize this is about preferences in partners by sex. But it’s not so clear that a judge with an agenda couldn’t interpret it to protect pedophiles. In that case, a No Pedo clause is useful. Furthermore, by removing the language, the courts might interpret that as a signal that the legislature is at least agnostic about protecting child molesters.

It is also useful in preventing litigation. With a No Pedo clause, there is probably no lawyer in Minnesota who would be willing to argue that pedophiles are protected by their states’ civil rights laws. Take it out, and they might see just enough of a chance to waste everyone’s time. That raises the cost of firing a pedophile and thus might make employers less wiling to do it.

But most crucially, there is no downside to leaving the No Pedo clause in this statute. None. As we say about guns, better to have it and not need it, than to need it and not have it.

As for the claim that ‘Gays Against Groomers’ is inciting violence, Mr. Finke should know better than that. The Supreme Court laid down the test for incitement in Brandenburg v. Ohio, 395 U.S. 444 (1969), saying that

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, to start off with, you need advocacy of violence. The closest ‘Gays Against Groomers’ comes is saying ‘We need everyone to join in this fight before it is too late.’ But we all know that people often refer to a peaceful political struggle as a ‘fight.’ Indeed, Mr. Finke has repeatedly used the word ‘fight’ in the exact same way:

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Further, the definition of incitement requires that it be designed to cause imminent violence or lawlessness, and that it be likely to actually do so. And by imminent, the courts mean ‘right away.’ We won’t say it is impossible for a Tweet to meet this requirement, but it would require extremely atypical circumstances.

Now, you might say, ‘okay, maybe that is not legally incitement, but what about morally? Isn’t ‘Gays Against Groomers’ inspiring violence?’ Except all they are doing is accusing people of bad behavior and if we say that people can’t accuse others of bad behavior because it might inspire violence, that’s the end of freedom of the press in this country. A huge part of what the press does is accuse people of wrongdoing.

For instance, it seems safe to assume that Donald Trump has gotten a lot of death threats over the years. Therefore, no one can report negative stories about Donald Trump? It’s a ludicrous approach.

Naturally there were many reactions to the original story:

That tweet claims that a new bill (HF447) was passed clarifying that Minnesota law didn’t make pedos into a protected class. There are two things to note about that:

First, it has not actually passed both houses. It is presently tabled in the Senate.

Second, it literally does what Mr. Finke’s bill (HF1655) does not: It deletes the protection for children in the definition of sexual orientation but, crucially, adds a section explicitly stating that pedophiles are not a protected class. Naturally, that would address our objection to Mr. Finke’s bill. But that is not Mr. Finke’s bill, and Mr. Finke’s version could still pass and place children at risk.

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As for Mr. Finke, he turned off replies, but not before getting a lot of pushback:

Stop confusing the issue with logic!

And, naturally, closing replies doesn’t prevent quote tweets:

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Indeed, back when Donald Trump was a sitting president, was told he couldn’t block people on twitter, but he could mute them, because under the First Amendment replying to his tweets and arguing with other people in the replies was part of our national discourse.

Wouldn’t that imply that Mr. Finke turning off replies is unconstitutional?

To the left, anyone who doesn’t agree with them 100% of the time is an extremist member of a hate group. It’s tiresome.

As a final coda, a few months ago, USA Today gave Mr. Finke an honor that has aged badly:

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Mind you, he is one of many ‘women of the year’ but they sure know how to pick ’em.

***

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Tags: CIVIL RIGHTS HUMAN-RIGHTS MINNESOTA PEDOPHILIA TRANSGENDER

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