Saturday, January 22, 2005

Richard Epstein was right:

Illinois has just become the 15th state to add "sexual orientation" to its official list of civil rights "non-discrimination" categories. Of course, the religious right is hysterical. Peter LaBarbera notes that unlike similar laws in other states and municipalities, Illinois provides no exemptions for religious organizations. This could lead to Churches being forced to hire homosexuals.

LaBarbera's comments illustrate the ridiculousness of the religious right's mantra of unelected judges undemocratically imposing "the gay agenda" on the will on the people. In fact, arguably the gay movement has won more battles in the legislatures than in the courts. And more importantly the aspects of the "gay agenda" that are most likely to interfere with the FREEDOM of anti-gay folks like LaBarbera come from such legislative, not judicial victories.

The concerns of gay rights roughly can be broken down into three categories of laws:

1) Sodomy Laws;

2) Gay Marriage & Civil Unions;

3) Anti-discrimination & "hate-crimes" codes.

Lawrence v. Texas ended the sodomy law battle. But keep in mind Lawrence struck down laws that were on the books in only 13 states, laws which were never enforced, arguably some of most stupid and unimportant (if you aren't gay) laws ever known to man. Moreover, after that decision, the freedom of anti-gay folks was not diminished one iota.

The gay marriage victory has been won in one court decision only-- in Massachusetts. In Vermont, a similar civil union battle was won in court. That's two out of 50 states where this issue was resolved undemocratically by courts (to be fair, Alaska & Hawaii both had similar court decisions in favor of gay unions, but were later overturned by the democratic process). Some other states, for instance, California and New Jersey, grant some sort of civil union status to gay couples. But those instances were done in the LEGISLATURES, not the courts.

And arguably gay marriage & civil unions do not diminish the freedom of opponents of such laws. From Richard Epstein's article on the subject:

When President Bush, for example, talks about the need to "protect" the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of gay marriage wants to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people.



Now to the third category of gay rights laws -- anti-discrimination codes (that apply in the private sector) and hate-crimes laws. 15-states and countless municipalities have anti-discrimination codes. Last I checked, around 30 states and the District of Columbia have hate crimes laws that protect on the basis of sexual orientation.

They are far more widespread than gay marriage-civil union laws. And ALL of these laws were passed by democratically elected legislatures. More importantly, these are the laws -- these democratically enacted laws -- that are most likely to interfere with the freedom of anti-gay folks.

Epstein aptly notes this:

The case against state prohibition of same-sex marriages becomes clearer when we ask how much further we are prepared to take the principle of democratic domination. Where is the limiting principle on majority power? Suppose that the proponents of gay rights get strong enough politically to require traditional churches to perform gay marriages, or to admit gay individuals into their clergy. Or to demand that people accept gay couples as tenants in their homes, even if they regard their relationship as sinful. Now the shoe is on the other foot. I think that the paramount claims of individual liberty should not have to yield to democratic decisions intended to impose an alternative enlightened view of public morals.


So what about the respect that folks like LaBarbera commonly claim that we all should have for the democratic law-making process, when deciding hot button cultural issues? LaBarbera notes "There is no societal consensus for homosexuality, bisexuality or transsexuality as the basis for civil rights...." Okay fine, then lobby the legislators and governors to repeal these laws. And if they don't do so, vote them out. Is that what LaBarbera plans on doing? No. LaBarbera answers, "we hope ultimately it will be struck down in court...."

If this Illinois law is applied to demand Churches hire gay ministers or perform gay marriages, there indeed will be a federal court case, and that decision will rightly strike down such an application of this law, citing Boy Scouts v. Dale as precedent (and keep in mind Dale was a case where a court struck down the application of a democratically enacted statute, vetted by the highest court in a sovereign state).

Yes, now that the shoe is on the other foot, LaBarbera -- like the proponents of gay marriage -- will run to undemocratically appointed judges to strike down democratically enacted laws. So much for "the will of the people, as expressed through the legislatures."






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