Gay hotel (apparently) breaks “sexual orientation” discrimination law:

Key West has a city ordinance that prohibits discrimination on the basis of sexual orientation in housing and lodging and in other areas of life. And a gay owned and operated hotel apparently violated this law by kicking three heterosexual couples out of their hotel because of the the customers' sexual orientation.

A number of interesting issues are raised by this story. First, it demonstrates how anti-discrimination laws threaten freedom of association and may have consequences that supporters don’t fully appreciate. The gay community, via the market mechanism of voluntary association, has established subcultures in various parts of the nation that thrive economically and culturally and that otherwise effectively suit the needs and desires of “the group.” One of those desires may be having an “authentically gay” atmosphere, being around other gays only. And this may in turn require granting preference to those whose orientation is like that of the community (or, in a more extreme measure—like in our story, for instance—an outright bar on those with the “normal” orientation). “Sexual orientation” anti-discrimination laws threaten the ability of the gay community to do this.

From an article given by senior program officer at the Institute for Humane Studies at George Mason University, Nigel Ashford explains the implications of such anti-discrimination laws in the private sector:

A gay bar owner could not employ only gay barmen and women. Gay clubs could not exclude straights. Do not believe that these laws would only apply against straights. In Provincetown, Massachusetts, a male gay bar was refused a renewal of its alcohol license because it excluded women and straight men, as was a lesbian bar in New York for its policy. In San Francisco a gay landlord was prosecuted for preferring gay men to women as tenants.

Now perhaps what Ashford is warning against is a desirable outcome; perhaps this outcome is moral, the way things ought to be. Although a preference for “one’s own” may be understandable, it plausibly can be argued that acting on that preference is immoral and ought not to be permitted, even if it means gay bars have to give prospective “straight” employees, etc. an even shot. But it is undeniable that many who support gay rights, especially many gays themselves, may not be aware of (haven’t fully thought out) the implications of anti-discrimination laws that bar discrimination on the basis of “sexual orientation” in private matters.

The article also implicates that even though anti-discrimination laws do threaten freedom of association, they do not in fact (in theory) grant “special rights” to gays, but rather equal rights to all on the basis of their sexual orientation. If the law only granted special rights, then only those with the “minority” sexual orientation would have standing to sue under these laws. But that is not the way anti-discrimination laws are either worded or interpreted by the courts.

First, if we examine the wording of anti-discrimination codes, we do not see them drafted in a way that says, you shall not discriminate against minorities...on the basis of being “black or Hispanic,” being “female,” being a minority religion, etc. etc. Rather what they say is you shall not discriminate on the basis of “race,” “gender,” “ethnic origin,” “sexual orientation.” All individuals have a “race,” “gender,” “sexual orientation,” etc. Thus, if one is “white,” “male,” “Christian,” and “heterosexual,” in theory, this man should receive equal protection from anti-discrimination codes that forbid discrimination on the basis of all these categories. I know this last sentence may have aroused a chuckle in some of you because we realize that there is a disconnect between the way these laws ought to operate in theory and the way that they do operate in practice.

And the matter is further complicated by the fact that not everyone agrees on how these laws should be interpreted. Even though “equal protection to all individuals, regardless of majority or minority status,” is the way that these laws seem to be worded, some leftist legal theorists and thinkers do NOT think that anti-discrimination laws should be interpreted this way. They believe that “race” should only mean racial minorities, “gender” should only mean female, “sexual orientation” should only mean homosexual or bisexual, etc. As Mary Francis Berry once said perfectly summing up this interpretive philosophy, "Civil rights laws were not passed to protect the rights of white men and do not apply to them."

But no court has ever held that under anti-discrimination codes, “race” doesn’t mean white, or that “gender” only means female, and that a white male thus lacks standing to bring a civil rights lawsuit. What courts have said is that so called majority groups do have rights under these statutes, but in certain limited circumstances, preference may be granted on the basis of race, gender, etc., to the "minority" groups who "need" it (I put the word "minority" in quotes because this term is often used as a synonym for “oppressed” groups. Even though women are a statistical majority, they are the “minority” group for the purpose of these statutes). And no court has ever told us how to satisfactorily apportion these rights between the minority and majority groups in those circumstances where minorities are eligible for such preferences. Which is why I believe that if we have to have anti-discrimination laws in the private sector, they should apply equally to all groups, black v. white, male v. female, gay v. straight, and on and on.

So the next question is will gays, once granted anti-discrimination protection on the basis of “sexual orientation,” become one of those “minority group,” who receive more protection than the majority via preferences & quotas? I think it is highly unlikely. Why? Because there doesn’t seem to be the so called "need,"—the statistical imbalances, the under-representation and all that—that serve as the impetus for such affirmative action programs. Although there is much uncertainly here, some statistical measures have shown that homosexuals are over-represented in terms of wealth, education, and income. Now, even though anti-gay folks say that this ought to disqualify gays from receiving any kind of anti-discrimination protection, this is not the case. Jews & Asians are also over-represented in similar manners, and receive anti-discrimination protection as racial, religious, and ethnic groups. But there is no push for affirmative action for Jews or Asians because it is not needed. Likewise will be the case for gays when more “sexual orientation” anti-discrimination codes are passed.

Although I see problems with anti-discrimination codes that forbid discrimination on the basis of sexual orientation in the private sector, I still support the inclusion of this category into already existing anti-discrimination codes. The problems that I see with “sexual orientation” codes are inherent in all anti-discrimination code categories that exist in the private sector, not just this one. In other words, in my first best world, we wouldn’t have any anti-discrimination laws in the private sector (although I do support the existence of these laws in the public sector). But if such codes do exist in private matters, and if they include all of those other categories that go way beyond just race (it’s also color, ethic origin, gender, religion, age, disability, pregnancy, and others), then there is no fair or logical reason as to why “sexual orientation,” should not also be on that list.