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Non-discrimination ordinance fails in Buckhannon

The Inter-Mountain photos by Amanda Hayes Buckhannon Mayor David McCauley speaks during the discussion of Ordinance 434.

BUCKHANNON – Four council members voted against a proposed non-discrimination ordinance at Thursday’s Buckhannon City Council meeting, with one council member saying the item should never have been placed on the agenda.

Ordinance 434, promoting a city-wide policy of all-inclusiveness and establishing practices of non-discrimination throughout the corporate limits and further expanding protections adopted by council in a 2013 resolution, failed to pass its first reading on a 4-3 vote Thursday.

Mayor David McCauley, councilman C.J. Rylands and councilwoman Mary Albaugh voted in favor. Councilman Robbie Skinner, councilwoman Pam Cuppari and councilman Dave Thomas voted no along with city recorder Colin Reger. To place the ordinance on the table for discussion, Rylands moved to approve, seconded by Albaugh.

Skinner began the discussion by reading from a prepared statement.

“This particular ordinance concerns me,” he said. “I’ve slept very little, eaten very erratically, over the past several days, much because of tonight. This is a no-win situation and it’s a proposal that should never have been placed on the agenda for consideration.

“Let me be very clear first. I in no way, shape or form support any act of discrimination toward any member of the human race. Period.

“I do, however fundamentally disagree with a municipal governing body passing social legislation on to our citizens and businesses. That is wrong.”

Skinner said city councils should focus on providing well-maintained streets, parks and sidewalks, invest in public safety departments, develop policies that foster economic growth and always be good stewards of finances.

“The proposal of this ordinance shows that this governing body is not focused on the right things,” he said.

Skinner also said the proposal of the ordinance “undermines the recent strides Buckhannon has made to be a community where everyone is rowing the boat in the same direction. We’ve overcome significant obstacles to become the beautiful, bustling, friendly community we are and that we’re known to be across the state and region.

“I see this ordinance as a mechanism to tear us apart, instead of bringing us together and I cannot support any legislation that does that.”

Reger said he asked a lot of hard questions of Fairness West Virginia executive director Andrew Schneider, the council, the city and others.

“Mayor McCauley has said on multiple occasions that he views sexuality and gender identity to be on par with race.

“If that is your viewpoint, than this thing needs to pass,” he said. “However, this council does not have the right to impose that understanding of the apparent equality of human sexuality and race upon the vast majority of residents of this city. I spent a lot of time talking to a lot of business owners and a lot of people who live in this town. Nine out of 10 voices have said that it is not only unnecessary, it is divisive and it is going to hurt us.”

Reger said he also took issue with there not being exemptions for individual Christians and that he felt business owners had free moral agencies.

“To try and attempt to strip away the free moral agency of a business owner to make his determinations or her determination about what he or she thinks to be right or wrong is not only immoral. It’s unsafe and it’s unAmerican.

But Rylands pointed to Upshur County being 97.6 percent Caucasian in the last U.S. Census.

“If our intention is to be a safe, affordable welcoming community where a point is made to include everyone that wants to participate than we have to behave in line with those intentions,” he said.

“I think it’s important that people of different persuasions and orientations feel they are welcomed in our community and I support this.”

Cuppari said she felt passing the ordinance would “open a can of worms.”

“I have been in business for years and I feel as a taxpayer and as a business person I should have the right to not perform a service for a person because I have gone through a lot of stuff with people who come in and give me problems,” Cuppari said. “I feel I should have that right to turn them away and say no. I will vote no against it. I feel it is best for the community.”

Albaugh said, “I did a lot of thinking and a lot of soul searching. I know it’s a personal issue for everyone, like my vote is a personal issue to me. I did a lot of thinking. I did a lot of praying and I had to decide what I felt was right. I am a Christian and I do believe but I have to think what is best as a city council person and separate myself.

“We are here to run a city the best way we can possible and to do that, we have to be more open, we have to be more caring, which we are, but even more so, we have to welcome people to come in within our community. That is how we grow.”

Thomas said, “I don’t think you can put something on paper and that’s how you are going to be friendly. You do it by your actions, by what you do for the community. Racism and bigotry is not genetic. It’s taught. The ordinance was not finalized until late yesterday. I read it for the first time today. Based on what I read today, I will vote against it.”

The mayor was the last to speak before opening the meeting up to the public.

McCauley said, “I am 100 percent supportive of this ordinance. We all have to be able to look at ourselves in the mirror and try to do the best we can for the people we represent. We have a great number of gay folks at West Virginia Wesleyan College, Buckhannon Upshur High School, right here in our corporate limits, business people…”

The mayor also told Skinner he took offense to his comment that the issue had become divisive.

“First of all it was not my initiative to create this,” he said. “There were members of our community who sought out the assistance of Fairness West Virginia to come here. They asked for this matter to be considered. It has nothing to do with creating an unnecessary, decisive thing.”

McCauley referenced Plessy vs. Ferguson, an 1896 U.S. Supreme Court case on racial segregation that was not overturned until Brown vs. Board of Education more than 50 years later.

“All we are doing with this ordinance is attempting to extend the protections to people of other orientations,” he said. “They would enjoy the same rights as people of color, ethnicity, age, handicap, religion – that is all this ordinance is intended to do is level the playing field.”

The core of the proposed ordinance could be found in Article 3, which stated that “the right of an otherwise qualified person to be free from discrimination because of that person’s race, color, ethnicity, religious, national origin, gender, age, disability, marital status, familial status, orientation or gender identity or veteran status is recognized and declared to be an actionable matter.”

It went on to say the right includes but is not limited to: the right to obtain and hold employment and the benefits associated therewith without discrimination; the right to the full enjoyment of any of the accommodations without discrimination; the right to engage in property transactions and the right to exercise any right granted under the ordinance without suffering coercion or retaliation.

The proposed ordinance noted that 11 West Virginia cities have adopted ordinances expanding protections accorded to people based upon their orientation beyond a resolution, including Charleston, Harpers Ferry, Huntington, Thurmond, Sutton, Lewisburg, Martinsburg, Shepherdstown, Charles Town, Wheeling and Morgantown. Charleston was the first in 2007. The city of Buckhannon adopted certain protections to persons based upon their orientation under Resolution 2013-05 in May 2013.

The ordinance would not have applied to:

1) a church or other religious corporation, religious association or religious society that employs an individual of a particular religion or faith to perform work connected with the performance of religious activities by the church religious corporation, association or society.

2) An employer who serves the conditions of a bona fide affirmative action plan or a bona fide seniority system which is not a pretext to evade the purposes of this ordinance.

3) A rental unit that is a part of an owner-occupied building. For example, if the owner resides in a common building with a portion of the owner’s common building being rented to others.

More than 60 people were in attendance at the meeting, prompting Buckhannon fire chief J.B. Kimble to ask that people wait outside of council chambers due to the max limit of 49 for the room occupancy. City employees and directors also waited outside and came in as needed to address council for their reports.

Edwina Howard-Jack said she had been asked to take over advising the Gay Straight Alliance at B-UHS from another faculty member next year and has met with the students already.

“It breaks your heart to hear that they we called abominations, that they are bullied and harassed on a daily basis – that they are disowned sometimes from their own families,” she said. “It’s, to me, inhumane to ignore those struggles. To put something in place that would help to protect them and others in our community to make it inclusive is the morally right thing to do.”

Several pastors from the community told council they loved all people but expressed their reservations with the ordinance.

Josh Layfield, pastor of Calvary Highlands, told council, “This ordinance would put me in a line of fire.”

Layfield, who also noted he was a military chaplain, said he put all his teachings online.

“These are my convictions,” he said. “I respect you. I love you. But my convictions say there is freedom and what the Bible teaches and that His son came down to free us.”

“This ordinance – it does cause division. I have seen it in the military – time and time again.”

Allen Whitt, president of Family Policy Council in West Virginia, said the issue was a divisive topic that should be addressed at the state legislature or in Congress but would likely be decided in summer 2019 by the U.S. Supreme Court, referencing a lawsuit over a florist who refused to provide services for a gay marriage — despite having provided flowers for that same couple on various other occasions.

But speaking to the city’s ordinance, Whitt said, “This ordinance would penalize a gay bar owner who chose to hire a gay bartender because he believed that would best serve his patrons. This ordinance makes that illegal.

“This goes two ways,” he said. “I believe a gay bar owner should be left alone to run his business as he or she sees fit. This steps on to free enterprise.”

Whitt said the ordinance would not help anyone and would likely result in a lawsuit.

Jacob Rose, the oldest of eight children, described an alleged discrimination incident years ago in which he worked extra jobs to help his younger sister buy a gown for a special event. When they went to purchase the gown she fell in love with at a local dress shop, the owner would not sell the gown because Rose was gay, he said.

“To this day, I still have this ache that I wish I or someone else could have stepped up to get this dress,” he said. “There is nothing in place to fill that void. To this day, she still can’t wrap her head around the fact that somebody would not sell this dress because I am gay.

“The dress wasn’t for me. It was for my little sister and because of ignorance and because of whatever — I don’t know… today I still feel bad for not being able to help her. A little girl’s dreams were crushed. I hope she can still sleep well tonight even after a decade of doing that.”

Jessica Scott said she was all for the ordinance.

“This doesn’t offer us any more or fewer protections than other folks who are already protected under Title VII which is the federal non-discrimination law already have,” she said. “I appreciate that the city of Buckhannon has considered this. I think all of us deserve to be free of the fear that we could be kicked out of our housing, that we could be fired from our jobs because of some trait about us whether you believe it is an immutable or not.”

Angela Errett asked three questions at the meeting, pointing out that Schneider said at the November 2018 council meeting that there had only been two cases brought in Charleston since the ordinance passed in August 2007.

“Does not this same example that Mr. Schneider gave at the November 2018 meeting punctuate the burden of additional ordinances which take time and resources to establish, which are paid by taxpayers as frivolous?” she asked.

Errett noted that the non-discrimination resolution was already passed by council in 2013.

“Why is the city even engaging in, what I will call, an anti-religion agenda?” she asked, referencing Schneider’s statements at the previous council meeting.

After the vote, McCauley said, “This isn’t the first controversial thing we have taken up and I guarantee it won’t be the last. I think there was value to having this exercise. We heard from a lot of folks and we understand each other better than we did before.”

Reger added, “I hope we can continue forward as a community with all the wonderful things we are doing.”

Rylands said, “These are difficult discussions to have. It is my hope that we put this one in the books. We made a decision and let’s move forward together. A lot of places can’t have conversations about difficult things. If we are able to do that, I think that — that’s something to aspire to.”

Fairness West Virginia released a statement on social media after the vote that said, “While this result is deeply disappointing and hurtful to the gay, lesbian, bisexual and transgender citizens who call Buckhannon home and the many LGBT and LGBT-friendly West Virginians who were watching this vote closely, no one ever said that the road to full equality and inclusion in West Virginia would be a smooth one without any bumps in the road. That said, we believe the fear that a number of council members succumbed to tonight, does not represent the true wishes of our state.”