First off, let me thank Signifying Nothing for the link. The topic was a few posts by Eugene Volokh where he discusses some of the analogies regarding “sexual orientation” as a civil rights category, particularly the analogy between “sexual orientation” and “race.”
The following is an email that I sent to Volokh regarding these posts:
I don’t think that gay rights activists uniformly make the analogy to race discrimination, or if they do, then I think it’s a mistake to do so for a few reasons. What activists should do (what I do) is say that “sexual orientation” ought to be recognized as a “civil rights category.” That’s far different than arguing sexual orientation is a near perfect analogy to race. Why? Well just look what’s already recognized as civil rights categories at the federal level: Race, color, ethnicity, gender, religion, age, disability, pregnancy. (Am I missing any?) The relevant question becomes, given what’s on the list, and given that the preexisting list is a fair one (it would be a far different story if the list included race and only race), [and given that the list should apply to private markets, which, I don't think it should] is there any logical reason for keeping sexual orientation off of the list? I say no.
As far as analogies are concerned, I’d say gender and religion (I liked the one you blogged about with the Hindu example [note: see also Sandefur’s post on this topic here]) are better ones than race. I realize that gender has more exceptions than race, i.e., [for Constitutional cases] “intermediate” as opposed to “strict” scrutiny and [for Title VII of the 1964 Civil Rights Act] the BFOQ exception for disparate treatment cases, whereas race is never a BFOQ. Yet, if sexual orientation could get that (gender’s) level of protection, which is significant, but less than race’s, I’d say that would be a major victory for gay rights.
What’s also interesting—something I did not mention in my email—is that Volokh mentions some other criteria that are not protected categories, for instance height discrimination. Personally I can think of many categories that are every bit as unchosen and immutable as race and in which discrimination based on these factors would be every bit as arbitrary and irrational: Not only height, but also eye color (natural), hair-color (natural), handedness, astrological sign, etc. (as well as some chosen things that would still be arbitary to discriminate against, i.e., male facial hair or female breast implants). So, if discriminating on the basis of these factors would be no fairer than discriminating on the basis of race, why don’t we add these to the civil rights list?
Bruce Bawer offers the answer:
History, indeed teaches us that it is not the [small d] democrats but the bigots who, time and time again, place special emphasis on lines that separate people into groups. The aim of every truly democratic society should thus be to lessen the importance of these boundaries—to recognize that it is unfair to be prejudiced either for or against individuals simply because they happen to belong to a certain group.
A Place at the Table, p. 87.
Now I’ve heard it argued that race is a social construct. That is, race, in and of itself, is no more intrinsically meaningful than eye-color or hair-color. But why do people separate themselves into “racial” groups, but not into “handedness” groups? The answer is because society has already drawn those lines (this also explains why women aren’t a separate social group; nature pretty much has prevented that from occurring).
So we might get the question, why should we give civil rights status to “sexual orientation” but not something like height, which is every bit as unchosen, and doesn’t even involve anything behavioral? It’s the same answer as to why we grant civil rights status to “race” but not “height.” Because society has “drawn lines” on the boundaries of “race” and “sexual orientation” but never—or not really—around things like eye-color, height, handedness.
I’ve talked to or otherwise know of some social conservatives who are sympathetic to gays getting fired simply because they are gay, and would like to see gays granted some sort of protection, especially in the public sphere [Note: not all social conservatives; some don’t want gays protected at all and in fact want the government to actively persecute gays or at least offer no protection whatsoever for them. But if you want a prominent example of one who fits my description: Ralph Reed]. That is, they accept the traditional economic theory that discrimination on the basis of sexual orientation or any factor that has no relatedness to the job in question is irrational economic behavior, and that although the private market has “corrective forces” that would help to tackle such problem without the need for anti-discrimination codes, the public sector, with its monopoly power, can simply pass off the cost of such irrational discrimination to the taxpayer. And those tax dollars come from gay Americans as well, making it even more unfair (we’ll discriminate against you and then pass off the cost of such irrational discrimination to you as well).
But the same social conservatives are usually hesitant at supporting any kind of public code that officially protects the category of “sexual orientation” in the public sector. That is, they want homosexuals to receive protection, but not under any kind of code recognizing “sexual orientation,” but rather under a generic code that would incidentally protect gays, without recognizing the "sexual orientation" category. For instance, a code that says something along the lines of “any and all job decisions shall be made strictly on the grounds of merit” and “any behavior that is not illegal shall not serve as grounds for adverse job decisions.” Arguably gays—like smokers, pork-eaters, short people, red-heads, flat-chested women or those with breast implants, guys that are too skinny or who have a beard—would all be protected against adverse decisions under such a policy, even as they receive no special protection on the official “civil rights list” that includes race, gender, religion, age, etc.
So why shouldn’t we protect sexual orientation with such a generic policy? For the same reason why “race” and “religion” have made the “civil rights list” but “eye-color” and “handedness” have not: Society has drawn the line—with its sodomy laws, its bans from public sector jobs, its sending to mental institutions, its reputation ruining, persecution and hatred—against homosexuals in a way that it never has against southpaws or redheads. That’s why “sexual orientation” ought to be on the list.