Dispatches from the Creation Wars

Gays and “Special Rights”

We often hear from the religious right about gays seeking “special rights”, but they never define the difference between a “special right” and a plain old fashioned right. Here’s a perfect example of the circular logic involved in such statements, from an email sent out by the Free Market Foundation (as a side note, I find it quite irritating when social conservative groups adopt the insignia of economic libertarianism like this. They do not really believe in the free market at all. When people operating in the free market choose to watch adult movies, they want to restrict their ability to make that free choice. When people in the free market choose to watch TV shows they disapprove of, they start boycotts to get rid of the “filth” on TV. There is nothing the least bit “free market” about this). Anyway, this is what the Free Market Foundation had to say:

U.S. Bill Attempts to Give Specialized Protection to Homosexuals

H.R. 3128, a clarification of the Federal Employment Protection Act, includes an added provision to give special treatment to a group of people based solely on their behavior (i.e.: sexual orientation). If passed, the bill would make it illegal to discriminate against homosexuals in federal hiring. Currently, homosexuals receive the same protections as other employees. As of last week, H.R. 3128, authored by Rep. Henry Waxman (D-Calif.) has 16 co-sponsors, including three republicans.

This is quite interesting. The Federal Employment Protection Act (FEPA) bars discrimination in federal hiring on the basis of race, color, creed, religion and “conduct unrelated to the job.” During the Clinton administration, sexual orientation was considered as a subset of conduct unrelated to the job, and one would certainly think that any sane person would agree that it should be. If you do your job well, what possible difference could it make whether you love someone of the opposite sex or someone of the same sex? None whatsoever. But Scott Bloch, Bush’s director of the Office of Special Counsel (the agency that oversees enforcement of the FEPA in federal hiring disputes), has reversed that policy. The sponsors of the bill above now seek to make explicit what should have been implicit already. And naturally, this group along with the predictable list of other organizations affiliated with Focus on the Family, the American Family Association (another side note: it annoys the hell out of me that they have so thoroughly coopted the word “family” in service of anti-gay policies – as though gay people didn’t have families) and other such organizations are quite opposed to anything that might give security to homosexuals. But their reasoning is quite interesting.

Look at the argument above. The right not to be fired from your job if you’re gay is a “specialized” right because it’s “based solely on their behavior”. In other words, they choose to be gay (false enough on its face) and therefore it’s okay to fire them for that choice despite the fact that it has nothing whatsoever to do with how well they perform their job. But wait a minute…why aren’t they seeking to have religion removed as a basis for prohibiting discrimination? By any reasonable measure, religion is far more a choice than sexual orientation. Religion is also “based solely on behavior” (if they fired those who practiced Judaism, one could simply begin to practice Christianity instead), indeed far more so than sexual orientation. Why aren’t these groups griping about the religious getting “specialized rights” like this? Well, because their reasoning is a sham. It has nothing at all to do with why they oppose protecting gays from discrimination.

They don’t really oppose protecting gays from discrimination because they’re opposed to “specialized rights”, they oppose protecting gays from discrimination because they disapprove of them being gay. And that’s all that really matters. Disingenuous excuses and inconsistent reasoning to prop up their position doesn’t change that one bit. Because family values, as Gore Vidal noted two decades ago, is a codephrase that means “get the fags”.

Update: By the way, you gotta see how this is reported in Human Events in a column by Robert Knight, director of the Culture and Family Institute. This is hilarious:

In response, 11 congressmen, including openly homosexual Representatives Barney Frank (D.-Mass.), Jim Kolbe (R.-Ariz.) and Tammy Baldwin (D.-Wis.), have sponsored the Clarification of Federal Employment Protection Act (HR 3128). The chief sponsor is Rep. Henry Waxman (D.-Calif.), who represents West Hollywood, a homosexual enclave in Los Angeles County.

You see, it’s very important that you understand that these three sponsors are gay. And the chief sponsor isn’t gay (though we do think he’s a little light in the loafers, if you catch our drift), but he represents lots of gay people. And rumor has it he even knows a few gays personally. And we all know that gays are bad people, so we don’t have to worry about little things like, oh, disputing the substance of their claims. All we have to do is point out that they’re gay, or they know gay people, and that’s enough to make our faithful Pavlovian readers react with outrage. Because gays are bad. Except, of course, gays like David Dreier or Ed Schrock or Robert Traynham, Rick Santorum’s communications director, who despite being gay works for and supports one of the most anti-gay men in Congress. Those gays are okay. They don’t get all uppity about things like, ya know, equal rights and stuff.

Comments

  1. #1 Matthew
    July 21, 2005

    Those types don’t acknowledge that consumers are 1/2 of the market; they are ardently pro-supply only.

  2. #2 Matthew
    July 21, 2005

    You’ve really been on a posting roll lately, by the way. Good stuff.

  3. #3 J
    July 21, 2005

    They don’t really oppose protecting gays from discrimination because they’re opposed to “specialized rights”, they oppose protecting gays from discrimination because they disapprove of them being gay.

    Of course, no one of any significance will call them what they are; bigots, for fear that they’ll start their poor, persecuted Christian whine.

  4. #4 GeneralZod
    July 22, 2005

    Great posts, as usual, Ed. And I think J hits the nail right on the head!!

  5. #5 Jillian
    July 22, 2005

    What in the good gracious name of sweet honey in the rock is a homosexual enclave??!?

    Isn’t it bad enough that jerks like this abuse the clear intent of the law – do they have to abuse the poor English language, as well?

  6. #6 kaspit
    July 22, 2005

    Speaking of the religious right, Ed (et al), you might be interested in this article on gay rights by a very learned, traditional, Orthodox Rabbi. He clearly distinguishes betw “special” and [regular?] rights. “…Certainly, traditional Judaism would oppose a law that seeks to give homosexuals a preferred place in the legal or social spectrum. … However, many in the various “religious right” communities advocate policies that seek to go much further than that. They seek to deny basic civil (political) rights guaranteed to all based on a lack of observance of private religious morality or law.” etc.

    He concludes: “Judaism should not support the denial of civil rights or the criminalization of those whose victimless actions run contrary to Jewish law or morality, lest we too fall prey to those who disapprove of our own laws or morality. In order to vigorously protect our rights, we must be prepared to defend the rights of others even others we do not agree with. Those who benefit from political pluralism and tolerance must be prepared themselves to be politically pluralistic if they wish to see pluralism continue and to benefit from it.

    You might want to read (& post?) the whole thing.

    Take care,

    Kaspit

    PS Unrelated q: Would you mind emailing me a link to a summary of the main schools/theories of constitutional interpretation? I’m looking into q’s of authority and jurisprudence in Jewish law.

  7. #7 Ed Brayton
    July 22, 2005

    kaspit wrote:

    PS Unrelated q: Would you mind emailing me a link to a summary of the main schools/theories of constitutional interpretation? I’m looking into q’s of authority and jurisprudence in Jewish law.

    I don’t know of any summaries online of the major schools of thought, though I’m sure they do exist. Most of my reading on the subject has been from actual books (very passe`, I know). One indispensible source of information on legal theory is Larry Solum’s legal theory blog, though.

  8. #8 Bob
    July 22, 2005

    Just to play devil’s advocate for a moment:

    While religion is certainly a choice, one’s freedom to make that choice is specifically protected by the first amendment. Certainly the federal government could not institute a policy which allowed a person’s religion to be a factor in federal government employment decisions.

    So I’m not sure that the religion analogy is the best one.

  9. #9 Dave
    July 22, 2005

    “So I’m not sure that the religion analogy is the best one”

    I hear what you’re saying Bob, but I think Ed’s analogy above refers to employment rights, so I think it is a pretty good analogy. We also have freedom of speech protected by the Constitution, but we can be fired from our jobs based on what we say, and rightly so.

  10. #10 Ed Brayton
    July 22, 2005

    Bob wrote:

    While religion is certainly a choice, one’s freedom to make that choice is specifically protected by the first amendment. Certainly the federal government could not institute a policy which allowed a person’s religion to be a factor in federal government employment decisions.

    So I’m not sure that the religion analogy is the best one.

    The analogy is on point as far as it needs to go, as the analogy only needs to be accurate in terms of both being cases of rights being granted on the basis of chosen behavior, one of which they are all for and the other of which they are vehemently against while the nature of the behavior being chosen is the only rationale they offer for why the one they oppose should not be a right. If anything, it makes their argument apply far more to their own behavior than to the behavior of others because, in fact, they are demanding that only religious behaviors that are chosen should be protected, a perfect example of a “specialized right” if ever I saw one (not to mention that they are wrong in thinking that homosexuality is simply a matter of choice).

  11. #11 Bob
    July 22, 2005

    So it really doesn’t matter whether Homosexuality is a choice or not. Is that your point? It’s a meaningless argument? It has nothing to do with enumerated vs unenumerated rights? I don’t want to misrepresent your point but if that was infact what you were trying to get across then it makes sense to me.

  12. #12 Ed Brayton
    July 22, 2005

    Bob wrote:

    So it really doesn’t matter whether Homosexuality is a choice or not. Is that your point? It’s a meaningless argument? It has nothing to do with enumerated vs unenumerated rights? I don’t want to misrepresent your point but if that was infact what you were trying to get across then it makes sense to me.

    No, this post had nothing to do with enumerated vs unenumerated rights. In fact, it didn’t mention the constitution at all. It was only about the logic of their argument that if protection is granted on the basis of behavior that is chosen, that protection amounts to a “specialized right”. And my response was that, by this reasoning, religion should also not be a category that is protected either since religion is also chosen (in the sense of being entirely culturally determined, not genetically determined). In fact, a far better case can be made for religion being chosen than can be made for homosexuality being chosen. So if their reasoning is true, it makes a far better case against religion as a protected category in anti-discrimination laws than it does against sexual orientation as a protected category. Protecting religious belief, by their reasoning, must be a “specialized right”.

  13. #13 kaspit
    July 22, 2005

    Many Jews experience (& think of) Judaism not as a choice but, well, let’s say “orientation”.

    Not sure that They are so contradictory. Don’t they support special rights for religion (e.g., 1st Amendment plus Their agenda)?

    [Thanks muchly for the legal theory link.]

  14. #14 SharonB
    July 22, 2005

    The “behavior” bit that the RR constantly refers to refers specifically to the ways they stereotype gay sex. It is an egregious dehumanization of gays in that it reduces this group of persons (and their eligibility for any human dignity or rights)to the way the RR thinks they have sex. It’s a rebuttable presumption to the RR that if one is gay, one is having gay sex and they assume gay people identify as gay, only because of the way they have sex.

    The RR is ~obsessed~ with gay sex; and, to them it is impossible for a gay person to actually love or respect another person of the same gender.

    Their drive to control the sexual behavior of all society is what fuels their rhetoric and thinking in this matter.

  15. #15 Bill
    July 23, 2005

    Having grown up in the South I heard talk about “special rights” in reference to African-Americans.

  16. #16 Ed Brayton
    July 23, 2005

    Bill-

    Rumor has it them people used to get uppity too. /sarcasm off