Wednesday, June 14, 2006

More on Gay Rights v. Liberty:

Let me strengthen Kuznicki's overall point in his post that the problem or the clash between "gay rights" and liberty isn't about gay rights per se, but an already existing system of laws and policies that inhibit liberty. And it's only when gays or "sexual orientation" ask for some sort of equal recognition in this already existing system of laws and regulations that religious conservatives cry their liberty is being threatened.

The problem is their liberty has already been threatened since 1964. And they seem content with the system, except when people argue that "sexual orientation" be recognized as an antidiscrimination category in this system that recognizes other categories, like age and disability, which haven't seen nearly the mistreatment that sexual orientation has. [Note: For those of you who argue for gay rights don't you dare let the other side stop the comparison at "race" and note that gays haven't suffered what blacks have. Gays have suffered far more than most categories already protected on "the list." Never forget that we don't live a world where race is the only bona fide civil rights category.]

Cass Sunstein has some useful and apt comments on the matter. From the New York Times article:

For Professor Sunstein, same-sex marriage does not raise qualitatively new issues so much as intensify existing tensions "between antidiscrimination norms and deeply held religious convictions."

As I suggested in my last post, let's ignore the overused race analogy completely. Instead of focusing on religion, this time let's focus on gender. Gender is relevant because homosexuality is in many ways a subsidiary gender issue and clearly, traditional religious convictions, while they may not speak to race, (as most religious conservatives now argue), they do most certainly do speak to gender roles.

A while back, before I had a blog, I posed this question to Eugene Volokh, which he subsequently answered on his blog (yes, I am "the reader" to whom he refers):

Say an employer/business owner -- who happens to be an Orthodox Christian -- interviews a prospective female employee for a job opening. During the interview she let's it be known that she is a married mother with young children and is planning on putting them into day care if she gets the job. The employer does not give her the job because, according to his religious convictions, he thinks that such a mother should be at home raising her children.

Would this violate Title VII's prohibition on gender discrimination (under the disparate treatment theory)? At first, it seems like an easy answer -- an easy yes. But I think it all depends on how narrowly the statute is interpreted. He could argue he wasn't discriminating against her on the basis of gender per se -- perhaps he ended up hiring a woman who wasn't in such a position -- perhaps one whose children were grown up. . . .

He answers:

Under Title VII, the easy answer is in fact the correct one: This is sex discrimination, because the employer is treating a woman with children differently than how he would treat a man with children (I assume that this is what he's doing, given the fact pattern). Courts have considered this general issue, under the rubric of "sex-plus" discrimination -- i.e., the discrimination is based on sex plus some other factor -- in contexts very similar to those that the reader asks about (I think they generally involved discrimination against married women, so the "plus" was marital status, but some might have in fact involved discrimination against women with children), and found that such practices were discriminatory.

And this, I think, is the only sensible interpretation of the statute. True, the employer isn't refusing to hire all women; but much discrimination is discrimination based on a prohibited factor plus something else. An employer who says "I'll hire any white/male/non-Jewish candidate who passes my minimum criteria, but I'll only hire a black/female/Jewish candidate only if the candidate's credentials are stellar" is discriminating based on race/sex/religion (or national origin) plus something else; yet that's quintessential employment discrimination, and the very sort of thing that the text of Title VII prohibits, and that Title VII was meant to prohibit.

[There's more.]

So there you go, Title VII of the Civil Rights Act and almost all state and local antidiscrimination codes protect gender, and this certainly restricts traditionally minded folks from acting on their conviction that men are natural heads of households and a woman's primary place is in the home raising children. This religious conviction about gender roles and employment seems to me to be as serious as the conservative Christian conviction on homosexuality, no? And given the number of women in the population and now in the workplace, and the relatively small number of self identifying gays and bisexuals, gender as a civil rights category, has been, since 1964 a far greater threat to the liberty of acting on traditionally minded religious convictions than sexual orientation would be. So why the selective outrage? Why aren't the Family Research Council and Concerned Women for America demanding the repeal of "gender" from all antidiscrimination codes?

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