Thursday, August 11, 2005

Anti-discrimination laws and "Special Rights":

Poor John Roberts. At first, I was amused by the social cons having reservations about Roberts and his pro-bono work on Romer v. Evans. Now I'm starting to be saddened by the anti-gay vitriol.

Paul Cella's post on the matter quotes Scalia's dissent from Romer and brings to mind what these laws are all about. One common mantra from the anti-gay forces is that these laws are "special rights" for homosexuals. One problem that I have with the rhetoric against such statutes is the utter double standards employed in criticizing sexual orientation codes. If they really do constitute "special rights" for homosexuals, then every other category protected in anti-discrimination codes likewise grants "special rights" to the minority, or even majority groups protected. "Race"? Special rights for blacks. "Gender"? Special rights for women. "Age"? Special rights for the elderly.

At least Justice Scalia, in his dissent, seemed to indicate that there is nothing "special" about granting such "special rights" to particular groups: "The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons -- for example, because they are senior citizens or members of racial minorities."

But this still begs the question whether any of these anti-discrimination codes, regardless of which categories they protect, be it race, religion, gender, or sexual orientation, give "special rights" to any of these groups. Arguably they do not. Well...yes and no.

In theory, the way that just about every anti-discrimination code is written, special rights are not granted to any minority group. Rather they protect everyone equally. Huh? Yes. Read the codes. They way they are drafted, they say such things as, "it is illegal to discriminate on the basis of race, gender, religion, sexual orientation, etc." They do not say, "it is illegal to discriminate on the basis of being black, women, gay" or otherwise specify that the minority groups get "special" rights to the exclusion of the majorities. In other words, white is a race just as black is a race, male is a gender as female is a gender and heterosexual is a sexual orientation as homosexual or bisexual are sexual orientations. And there are cases in every category establishing that the so called "majority" (whether it's white, male, or straight) are protected categories under such statutes.

So how can a statute which equally protects whites with blacks, men with women, and heterosexuals with homosexuals and bisexuals, be considered granting "special rights" to any minority group? Rather the codes equally protect all. We all have a race, gender and sexual orientation; we are all protected equally....well, that is the way that I, as a libertarian, (and some moderates and conservatives as well) desire the statutes to operate in the real world. (In a first best world, as a libertarian, I think only the government should be forbidden from discriminating on the basis of these categories. However, if we have to have anti-discrimination laws in the private sector, sexual orientation should be a protected category and all of these categories should protect the so called majority groups equally with the minority groups).

In practice, the minority groups probably do receive special protection, and that is unfortunate. First off, some leftist civil rights theorist support such blatant double standards. As Mary Francis Berry once said, "Civil rights laws were not passed to protect the rights of white men and do not apply to them." In other words, "race" does mean only "black" or at the very least "not white," "gender" means "female" and so on and so forth. Few if any courts endorse this interpretation. And if they do, Supreme Court precedent interpreting these statutes does not. However, the Supreme Court has allowed for affirmative action programs which do give special rights to minorities to the exclusion of the majorities.

And then there is the problem of presumption. Even if in theory, these laws are supposed to protect all groups equally, when a member of the "less dominant" groups (I shouldn't say "minority" because women are a statistical majority) suffers an adverse employment decision, they can more easily claim "discrimination" than a member of a "majority" group. In other words, someone who happens to be black, female or gay gets fired, "I was fired because I was black, female, or gay." Well maybe, or maybe it was because of incompetence. But someone who happens to be white, male or straight gets fired, such people are presumed fired for legitimate reason unless it was clear -- like smoking gun evidence -- that his race, gender, or sexual orientation was used as a reason for the firing.

At least, this is how I observe these laws operating in the real world. Feel free to challenge me on this.

But to tie things back to Romer. One of the things that was most offensive about Amendment 2 was the way it singled out and targeted gays and bisexuals. That, by itself, I think was the legitimate grounds for the Romer verdict. As I noted above, these sexual orientation codes DO NOT single homosexuals and bisexuals for special protection; rather they generically protect the category of "sexual orientation," which, in theory, protects everyone's sexual orientation equally. Yet, Amendment 2 itself stated,

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.


It went far beyond it needed to. If Amendment 2 simply said, "sexual orientation" shall not be a protected category, I think it would have been much harder to hold it unconstitutional, because at the very least, you could argue that heterosexuals are getting their "special rights" taken away right with homosexuals and bisexuals.

I think a good thought experiment to see whether you really believe Amendment 2 to be constitutional is replace, "homosexual, lesbian, or bisexual" with other categories. Imagine, No Protected Status for "Blacks, Hispanics, or Asians." Originalist could argue that the 14th Amendment clearly was concerned with race discrimination. But how about,

No Protected Status for the status of being Female. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby the Female Gender shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.


Arguably the 14th Amendment was as unconcerned with protecting "gender" as with "sexual orientation." Gender didn't even receive 14th Amendment protection until the 1970s. It seems to me that an Original Intent conservative would have no grounds for objecting to such a statute that not only removes the category of "gender" from receiving special protection, but singles Females out specifically.

11 comments:

Marty said...

and heterosexual is a sexual orientation as homosexual or bisexual are sexual orientations.

This is wrong of course. heterosexuality is so much more than a simple "orientation" -- even gays understand this, and prove it every time they visist the infertility clinic. They aren't visiting because they are infertile, they visit because while they are homosexually oriented, they still recognize the need for an opposite sex union to fully express their common humanity.

Men should be treated as men despite their race, religion, or orientation. They should NOT be treated as women, in certain special circumstances, simply because of their "orientation".

John said...

"It seems to me that an Original Intent conservative would have no grounds for objecting to such a statute that not only removes the category of "gender" from receiving special protection, but singles Females out specifically."

I have been concerned that women don't enjoy any guaranteed constitutional rights, but do you believe that it is likely that any judge today would come to the conclusion that the 14th amendment does not apply equally to women?

Jonathan said...

-- but do you believe that it is likely that any judge today would come to the conclusion that the 14th amendment does not apply equally to women? --

I don't see how Robert Bork's line of "Original Intent" jurisprudence could come to any conclusion other than the 14th Amendment does NOT equally apply to women.

This is because the specific subjective intent of the Framers of 14th Amendment's "equality" guarantees had "race" only and not "gender," or "sexual orientation" in mind.

It's true that there is good evidence that the Framers of the 14th thought they were dealing with more than just "race" issues; for instance that the "Privileges or Immunities" clause incorporated the first 8 amendments of the BOR. [Although many Originalists ala Bork (but not Thomas) dispute this.] But I still don't see any gender or sexual orientation issues in there.

In terms of any judges [or court decisions] successfully overruling gender's status under the Equal Protection Clause, I doubt it. Scalia and Rehnquist I think, thru the doctrine of Stare Decisis, accept the change. Thomas might overrule it.

Thomas is interesting in that his jurisprudence vacillates between "Original Intent" -- how did the Framers specifically, subjectively anticipate the constitutional provision to apply in their time? -- but also believes in the natural rights of the Declaration of Independence. And the Declaration's broad ideals could very well conflict with how the framers or certainly how "the people" subjectively expected those ideals to apply.

For instance, a majority of "the people" at the time of the Founding certainly thought that "all men are created equal" meant all white men only; that would be a way to reconcile the Declaration with slavery. But Thomas has on record stated that he believes in the natural law of the Declaration as part & parcel of organic constitutional law because that's the only way to achieve an antislavery originalist result.

But the same logic that gets us "out" of slavery also arguably gets us "in" to other things; it could get us "in" to gender equality (for instance, "all men are created equal" means all humans, not just all males) or it could even get us into sexual orientation equality as well.

But to get back on track, no I don't see the court overruling its jurisprudence protecting gender under the Equal Protection Clause.

John said...

Thank you, Jon for your details response.

Between this site, Ed's and Positive Liberty, I am getting an education better than I would get in school.

Jonathan said...

My pleasure!

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