Wednesday, August 30, 2006

California's Discrimination Policy:

I agree with Ed Brayton's sentiments entirely. California has just added the category of "sexual orientation" to its pre-existing list of protected civil rights categories.

A few comments. First, keep in mind these antidiscrimination codes almost always come from statutes, not judicial decisions. And the California code is a democratically enacted statute signed into law by an executive. This demonstrates what a canard is the antigay right's oft-repeated notion that the judiciary, not legislatures reflecting "the will of the people," primarily advances "the gay agenda."

Second, although these antidiscrimination laws do indeed limit private freedom, that's an issue not particular to "sexual orientation codes," but to antidiscrimination laws in general. Given what's on the "official list" of protected categories, nothing inherent in the "sexual orientation" category should disqualify it from the list. As I wrote recently:

Granting "sexual orientation" some official status as a civil rights category is a controversial issue. Some on the right fault gays for even "asking" for such, noting that you can't compare race with sexuality. And while many gay rights advocates often invoke the racial analogy, it has become, in my eyes, more of a thoughtless platitude of the anti-gay right to claim "you can't compare sexual orientation with race, therefore no civil protection for you." If we lived in a world where race and only race was the only protected anti-discrimination category, the point might be apt. But that's not the world we live in. Instead, it's race, color, gender, religion, ethnic origin, age, disability, pregnancy at the federal level and many others, including "sexual orientation" at the state level.

And of course, the antigay right evidences utterly faulty logic whenever it tries to argue that presently existing antidiscrimination statutes are just fine, as long as sexual orientation is kept off the list, because it's not like the other categories. From WorldNutDaily:

"As a citizen of California and a religious person, I am terribly disappointed in Gov. Schwarzenegger," said Meredith Turney, the legislative liaison for CRI. "It is bad public policy to add to the list of protected classes a sexual behavior.

"Equating sexual preference with the immutable characteristics of age [sic], national origin or race will result in other variable behaviors being added to the list of invariable classes rightfully protected," she said.

Notwithstanding the fact that most experts who have studied the issue believe sexual orientation to be immutable, at least for most people, mutability is not a prerequisite for official civil rights protection. Age certainly is not immutable, as erroneously claimed. Age is the very opposite of immutable; it is in a constant state of change as we are growing older by the moment. Of course, age isn't chosen. But one's religion is entirely a matter of choice and thus mutable. It could be argued that "religion" is special because such rights are enshrined in the Constitution. Sure, but that justifies prohibiting public, not private discrimination on the basis of religion. Before the Civil Rights Act of 1964, it was entirely legal to discriminate on the basis of religion in private markets. Likewise disabilities often are 1) mutable (they can be cured) and 2) result from activities that are entirely a matter of choice. For instance, Christopher Reeve became disabled and thus covered under the ADA only after he made the choice to engage in a risky behavior -- jumping horses. Finally, pregnancy is protected at the federal level by the Pregnancy Discrimination Act. And unless the pregnancy results from rape, such is entirely a matter of chosen sexual behavior.

All of this isn't to justify antidiscrimination codes as they apply to private markets but rather to debunk the notion that antidiscrimination codes traditionally protect racial categories only and all other categories on the list are "just like race" in the sense that they are immutable and sexual orientation is not. What nonsense.


The Gay Species said...

I'm certainly not keen on "special interests" legislation, because it violates the "universifiable" requirement. But the universifiable requirement should at a minimum not allow discrimination that would irreparably harm one's right to survive.

Food, clothing, and shelter are such universifiable requirements, and the ability to "work" to procur these requirements is minimally necessary, or else society will have to make transfer-of-payments to the dispossed in order for the excluded to survive.

In this context, laws barring landlords and employers from discriminating on non-performance criteria are necessary, unless society feels attached to subsidizing all those it disagrees with. We may not like others' modes of life, but if we bar them from providing for their subsistence, then it must come from our salaries to compensate them for their inability to provide for themselves. Whatever else I may disagree with, I personally do not want my taxes used to finance "social intolerance."

At some point, each individual should be "permitted" to etch out his own existence and survival, and those who would impede an individual's mode of survival MUST compensate the individual for others' prejudice, or insist that "extrinsic" factors, such as race, religion, and sexual orientation cannot be a reason to deny a human being his mode of existence. If people want to discriminate on "arbitrary" reasons, unrelated to performance, then they owe the discriminated a share of their income to compensate them from their lack of employment or housing. Denying individuals a means of subsistence or existence has its costs, and those costs must then be borne by those who would deny them their means of existence.

I've been promoted in employment thrice because I am gay, and discharged from employment once for the same reason. All by "straight" males, and the discharge by someone who would not ordinarily "fit" a homophobe (U.C. Berkeley graduate and Episcopalian).

But being unemployed, for ANY reason, or being denied housing, for ANY reason, other than non-performance, cannot be a social good, if those reasons have nothing to do with one's capacities to work or dwell. If an employer/landlord can cavilierly dismiss a person for his own arbitrary and prejudicial reasons, then the impacted person, who still has his survival needs to be met, is owed social compensation.

In an ideal world, no one should be forced to "contract" against his will. But we don't live in an ideal world, we live in a very human world. And human diversity must be accommodated one way or another. If a landlord or employer refuses to "contract" with a bi-racial homosexual couple, because of his personal prejudice against mixed races and homosexuals, who, then, should pay for his prejudice? Someone must! Should everyone's taxes be increased to subsidize a prejudiced-person's "undesirables," or should those with prejudices be coerced to absorb his antipathies so that the rest of society does not have to "pay" for his intolerance? Denying any human being a means of employment or residence or both, for no other reason than the "lifestyle" is repugnant, is pretty low in terms of human contempt, but who will pay for the out-of-work, unhoused bi-racial homosexual to meet minimum his needs of survivability? Someone must! Should society pay for an intolerant bigot's contempt for someone else's lifestyle, or should the employer or landlord be "forced" to bide his prejudice, so that the rest of society does not have to pay for his indiscretion?

This simple dichtomy is the only choice. Either intolerant intolerance is subsidized by the rest of society, or the bigot must bite his lip and "allow" undesirables to exist. And bi-racial homosexuals are the tip of the iceberg. What happens to the Anglo-Heterosexual Couple who wants to co-habitate? Or the American of African descent? Or the naturalized Hispanic? What if one's intolerance won't permit the bigot to be "blind" to "sins" he disapproves? What if someone's adultery violates his conscience and he chooses to evict his Anglo-born-again resident for her sins, and tells every inquirer she is a "loose woman living in infidelity to the disgrace of the human race? His freedom of speech permits such intolerance, but someone will have to pay for her subsistence, if she cannot provide for herself, because of his intolerance. So in exchange for his intolerance, others will be "forced" to provide for her residence in lieu of employment. Who, where, is slack cut? When does someone else's indignancy become intolerable to those she has imposed on others? Someone must pay!

In a pluralistic liberal democracy, such as intended by the Framers of the Constitution, such bigotries cannot be "coerced" onto others, because of a given individual's illiberal intolerance. We may choose not to employ an incompetent, ill-dressed, and foul-mouthed prospective employee for "cause," but we cannot allow extrinsic factors like one's private sexual predilicitions to trump the "social compact." If we don't draw a line somewhere, we will all be paying (literally and figuratively) for some other bigot's prejudice that has nothing to do with an individual's competence. Either the bigot gets over his prejudice, or society will have to pay for his intolerance (multiplied exponentially). And one person's intolerance becomes another person's intolerance.

One's evaluation of "competence" can meet independent standards, but one's "bigotry" meets nothing except another's contempt, a contempt which is then compelled onto others in the form of more subsidy of the one discrimated. At some point, intolerance of the Other cannot be accommodated in a pluralistic liberal democracy without endangering the society itself. Thus, bigots, in all their array, must get over their intolerance, or everyone else must pay for her bigotry. If individual competence is not at stake, then intolerance cannot be accommodated in a pluralistic society. The bigot must accept his own consequences, which the larger society will not tolerate.

Someone else's bigotry and intolerance is fine, until and unless I HAVE to pay for it. I will not PAY for someone else's intolerance. When forced to accept another's bigotry and intolerance, and then coreced to subsidize it, I choose to coerce him to pay for HIS irrationality. Thus, HIS intolerance and bigotry becomes MY intolerance and repudiation, a frivolity I choose not to support. In fact, I will legislate his tolerance, so I don't have to pay for it. Get over your prejudices and bigotry, my legislation says, because I will not pay for it! Learn "to live, and let live," but do not make me a subsidiary of your discontent. I've drawn a line in the proverbial sand, and YOU have crossed it.

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