Thursday, February 23, 2006

It's Official:

Stop the Presses...straight white conservative Christian males are officially a "protected category" under our civil rights laws and possess all of the "special rights" appurtenant thereto.

Seriously though, this fact illustrates the wisdom of Richard Posner in Sex and Reason which I cited earlier:

[G]iven Title VII and cognate laws, is there any reason to exclude homosexuals from a protected category that already includes not only racial, religious, and ethnic groups but also women, the physically and mentally handicapped, all workers aged 40 and older, and in some cases, even young healthy male WASPS? Is there less, or less harmful, or less irrational discrimination against homosexuals than against the members of any of these other groups? The answer is no.

This should also put the rest the canard the religious right puts forth that sexual orientation codes give homosexuals "special rights" that they don't have, when, it's clear that religious conservatives have such "special rights" and are willing to exercise them.

Civil rights statutes can be a complicated matter. And I think the religious right, when originally putting forth the "special rights" canard, seized on such complication and general confusion that ordinary people have regarding the finer details of the law in general, antidiscrimination codes in particular. Indeed, Colorado amended its constitution based on such a misunderstanding. The following are some complicating factors of antidiscrimination codes:

1) Some radical leftists really do think that civil rights statutes ought to be interpreted to protect only minority categories and thus give them special rights. For instance, Mary Francis Berry once said: "Civil rights laws were not passed to protect the rights of white men and do not apply to them."

2) Some affirmative action programs have passed constitutional muster (but many have been struck down) and such programs do seem to give greater rights under these statutes to some groups and not others;

3) When a member of the "less dominant" group (I shouldn't say "minority" because women are a statistical majority) suffers an adverse employment decision, it seems as though they can more easily advance a claim of "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 more likely to be 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. It's really just a matter of perception that does most likely seep into the way these laws are applied in practice. (And personally I'd like to see the same "smoking gun" evidence required to advance any claim of discrimination.)

But nonetheless:

1) Antidiscrimination codes are written in such a way that the text of the statutes do not grant special rights to minority groups but rather protect certain categories which universally apply to all people. So, take for instance, "race, gender, sexual orientation, and religion." These categories apply to everyone; hence white male straight Christians, like the fellow cited above, have their "race, gender, sexual orientation, and religion" protected under such requisite codes. If sexual orientation is not a protected category in a particular jurisdiction, then such a person could be fired merely for being straight. So ironically, the "heterosexual" orientation of the majority gets protection under a so called "gay rights" ordinance.

2) Contrary to Mary Francis Berry's wishes, the courts have held that antidiscrimination codes do apply to such majority groups. That is, if a code says you may not discriminate against "race or gender" (as opposed to the code saying you may not discriminate against "blacks or women") then under the concept of "equal protection of the laws" the "white" race and "male" gender are, at least in theory, equally protected.

This should help us to understand just how despicable Amendment Two in Colorado was, regardless of whether the Romer decision was correctly decided. That Amendment, passed under a campaign influenced by the blatant lies of Paul Cameron, and the misleading "special rights" rhetoric, did not simply repeal "sexual orientation" codes that existed in the state. If the Amendment were written that way, the Supreme Court would have had a harder time striking it down. Rather, the Amendment singled out those with a "Homosexual, Lesbian, or Bisexual Orientation" even as the sexual orientation codes in question were written in a "sexual orientation blind" manner.

Finally, and most ironically, it's not clear that Amendment Two repealed the sexual orientation codes at all in the state of Colorado, but rather withdrew homosexuals, lesbians, and bisexuals from their protection. As we've seen, sexual orientation codes, like the others are written in a neutral manner, and so-called majority groups do in theory receive protection under such laws. Thus, the laws would have remained on the books and heterosexuals would still have been able to sue under them were they discriminated against because of their sexual orientation.

I know this seems like an absurd result, but it is still logically and factually accurate, given the way antidiscrimination codes theoretically work. That the drafters of Amendment Two probably didn't even realize this absurd but logical result of their act shows that they probably really believed their specious claim that sexual orientation codes merely give "special rights" to homosexuals, lesbians and bisexuals that the other citizens do not have.

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