(dissenting).
Under South Dakota law, is discrimination restricted to discrimination based upon *490race, color, creed, religion, sex, ancestry, disability or national origin? No.
Under South Dakota law, has the majority opinion forsaken a reasonable interpretation of the express language in SDCL 20-13-23 to apply . for any person1 .. or to accord adverse, unlawful or unequal treatment to any person ... ?” Yes.
Has the majority opinion relied upon erroneously applied federal law? Yes.
Accordingly, I respectfully dissent.
Sylvester’s, Inc. is a “public accommodation” as defined by SDCL 20-13-1(12). It is open to the public as a bar and restaurant. It further hosts live entertainment and dances. Apparently, the only limitation placed on use of the facility by the public would be that of age.
LaBore has been a regular patron of Sylvester’s. At no time, while therein, has she engaged in conduct which would have been an annoyance to the other members of the public or the management.
The source of her problem stems from a slander suit that she filed against two employees of Sylvester’s. The management refused to serve her and asked her to leave, as she was told it was an uncomfortable situation for her to remain in Sylvester’s, and for her to be in contact with two of Sylvester’s employees whom she was suing. Commission dismissed LaBore's complaint. LaBore responds that the portion of SDCL 20-13-23 which follows the semi-colon stands on its own and prohibits any type of discrimination. I agree. La-Bore has acknowledged that she has not been, per se, the victim of any discrimination based on race, color, creed, religion, sex, ancestry, disability or national origin. All parties agree that the source of her banishment from Sylvester's is her suit against two of its employees. Britton, South Dakota, is not Minneapolis, Chicago, New York, Atlanta, Seattle, or San Antonio. It is a small agricultural town and community, on the prairie of South Dakota, without great population and public accommodations. It has a population of 1,394.2 Banishment from this public accommodation is meaningful to LaBore. She should not be humiliated or disgraced because she sued two of the workers for defamation. She is entitled to equal protection of the law. (Fourteenth Amendment to the United States Constitution). Apparently, under the reasoning of the majority opinion, Emily LaBore is not a “person.” I believe she is a “person.” You do not have to be a member of a minority race to be a “person.” You do not have to be Norwegian, Jewish or Italian to be a “person.” You do not have to be a Methodist or a Catholic to be a “person.” You can be an agnostic and still be a “person.” You can be a Hindu, in America, and you are still a “person.” To be a favored person, apparently you must belong to a certain favored class. Discrimination may exist only, by the majority opinion, by class. The United States Constitution centers on individual rights. Indeed, the Fourteenth Amendment was deliberately formulated to prohibit precisely such classifications. The Constitution must be color blind, religion blind, sex blind, ancestry blind, disability blind, national origin blind and class blind. We have, before us, a young, white, female “person” who is refused food or drink in a restaurant/cocktail lounge because, apparently, she had the audacity to retain counsel and bring suit for defamation. Having hired counsel, to protect her name, a right guaranteed to her under the state and national constitutions, she is now publicly disgraced by being refused service in a public accommodation. In 1748, de Montesquie admonished: “The deterioration [of government] begins with the decay of the principles upon which it was founded.”
Do you believe that an individual in a society — such as America — millions strong — has worth? I do. Early generations were subjugated to the divine rights of Kings and Caesars. We Americans expressed that each individual had certain inalienable rights, among these being that all men [women] are created equal, and are endowed with the rights of Life, Liberty, *491and the Pursuit of Happiness. Shaming this young lady in public is not permitting her to pursue happiness. In South Dakota, my forefathers apparently took it upon themselves to read the Declaration of Independence for they incorporated expressly some of its language in the State Constitution, Article VI § 1. This includes the Pursuit of Happiness. Article VI § 26 addresses the proposition that all free government is instituted for the people’s equal protection and benefit. LaBore is not being equally protected. She is cast out in the outer darkness of the law because she is not a “person” of a favored class.
Under the terms of the two key statutes in South Dakota, SDCL 20-13-23 and SDCL 20-13-1(16), the rights of LaBore are quite explicit. Our lawmakers went far beyond the Federal Civil Rights Act of 1964. Lawyers can read; so can professors; so can the academe. The word “or” is in both statutes. Majority pays it no heed. In North Dakota, “or” means something. Hooray for the North Dakotans! See, State v. Silseth, 399 N.W.2d 868 (N.D.1987). The North Dakotans reasoned that “or” is a disjunctive conjunction. Yes, a conjunction reflecting an alternative between different things or actions. “Or” must mean something. It cannot mean nothing. If the intent, as the majority opinion instructs us, was to limit the application of the entire statute to discrimination based upon race, color, creed, etc., it certainly would not have been necessary to set forth these restrictions in the first half of the statute. Rather, the Legislature (not an agency of government like the Division of Human Rights within another agency — the Department of Commerce and Regulation), expressing the mil of the people, saw fit to legislate far more broadly. And the language is there. SDCL 20-13-23 is there for all to see and all to read. It reads, after the semi-colon:
[O]r to accord adverse, unlawful, or unequal treatment to any person with respect to the availability of such services and facilities, the price or other consideration thereof, or the terms and conditions under which the same are made available, including terms and conditions relating to credit, payment, warranties, delivery, installation, and repair, (emphasis supplied).
If that is not clear enough, the second portion of SDCL 20-13-1(16) provides:
..., or otherwise adversely affects, or if accomplished would deny, prevent, limit, or otherwise adversely affect, the benefit or enjoyment by any person of employment, labor union membership, housing accommodations, property rights, education, public accommodations, and public services, (emphasis supplied).
Construction of a statute is a question of law. Petition of Famous Brands, 347 N.W.2d 882 (S.D.1984). Here, the majority construes one-half of the statute and holds the second half of the statute to be meanr ingless. All of the provisions of this statute are needed by each person in this state; the provisions are good; nothing is fair about them — nothing is good — if some are honored and some are dishonored.
Civil rights statutes should not have restrictive applications. We have, before us, a classic example of reverse discrimination. There is no doubt that the human rights statutes of this Nation were enacted to afford those rights and privileges to classes of people which were traditionally discriminated against. But it does not make common sense to hold that everyone else, who does not fit squarely in a class, is a fair target for discriminatory conduct.
Here, we have “sensitivities” of employees in public accommodation exalted and, supposedly, providing a lawful reason to refuse service; but what of the “sensibilities” of this young, white lady who sits down and orders her dinner? Her “sensibilities” are totally disregarded. As an old fella sitting on a bench in front of a country store might well muse “it ain’t right!”
. A corporation, such as Sylvester's, Inc., is a "person” under the law.
. Judicial notice is taken thereof via SDCL 19-10-2.