Over at Overlawyered.com, Walter Olson has a post on gay inns in the U.K that are concerned over a proposed British anti-bias law. It's an interesting question: If you can't discriminate on the basis of sexual orientation, including in your advertising messages, do gay-specific accommodations become illegal?
Back in the U.S., discrimination initiatives involving gays seem to have less to do with infringing on private employers (for good or ill), and more to do with allowing the federal and state governments themselves to discriminate by treating gays as unequal citizens. Last week, for example, the Michigan Court of Appeals ruled that the state's constitutional amendment banning same-sex marriage prevents public institutions from providing employees' same-sex partners with healthcare and other benefits.
During the campaign to pass the anti-marriage amendment, proponents assured voters it would not affect domestic partner benefits, then immediately upon passage spun round and claimed that for the state to grant DP benefits would unlawfully constitute recognition of "a union similar to marriage."
Of course, this isn't really an unintended consequence of the amendment, just a consequences hidden from the public through social conservative deceit.
More. As Overlawyered.com noted in March 2005:
a spokeswoman for Citizens for the Protection of Marriage, a group heavily backed by Michigan's seven Catholic dioceses, told the Detroit News "nothing that's on the books is going to change. We continue to confuse this issue by bringing in speculation." However, with the amendment now in effect, the state's attorney general-to cheers from most of the amendment's organized backers-has issued an advisory opinion stating that it does indeed prohibit the city of Kalamazoo from providing DP benefits to its employees after the expiration of their current union contract....
Don Herzog of Left2Right, who has assembled plenty of links on the story [see here and here], aptly labels the sequence of events "Bait and Switch."
On a related note: Wash. [State] Initiative Would Require Married Couples to Have Kids. It's a stunt, but I kind of like the idea as "agit-prop."
26 Comments for “Unintended Consequences?”
posted by Michael M. on
Of course it would be — should be — illegal to set up a “gay-only” accommodation. How could it not be? You can’t allow “gay only” signs without also allowing “straight only,” just as you can’t allow “black only” signs without also allowing “white only.” Either you want to live in a world where people can freely exercise their rights to be bigots in any and all things, or you want one where some practices force people to put aside their prejudices.
This really, at heart, isn’t any different from questions like whether pharmacists opposed to abortion or birth control should be allowed to turn away women seeking the “morning after” pill or birth control, or whether Muslim taxi drivers should be allowed to refuse to take passengers carrying alcohol. They are all questions about how inclusive “public” has to be when you are providing a service to the public.
Personally, I find the question of the gay inns to be ridiculous. It should be perfectly legal to state a preference for gay clients without stating categorically that no straights are allowed. An inn can still call itself a gay establishment. How would you even enforce such a restriction? Are you going to ban male-female couples, so that a gay man and his lesbian friend would not be permitted? Ban children, so that a gay couple who have kids would not be permitted? Force all guests to bring a videotape of a recent sexual encounter to prove their sexual orientation? It’s an absurd complaint.
posted by Alex on
It’s often occured to me that when I own rental properties I would be well within my rights to say: You’re heterosexual? Don’t bother filling out an application, I’m not going to rent to you.
Of course, this isn’t really an unintended consequence of the amendment, just a consequences hidden from the public through social conservative deceit.
A deciet that was frequently pointed out but Michigan voters didn’t care about. Justice does not seem to be a social conservative value.
posted by James on
And what would you do with all the gay man/lesbian couples which form when the most strident members of ACT UP work together a little too closely? What about those “once gay/always gay” guys who suddenly discover their sexual fluidity but still want to call themselves gay because they can’t live without an exotic, queer identity–even though they end up marrying someone of the opposite sex?
I think it’s funny when gay activists of the opposite sex hook up and still identify as gay–and then complain when a married guy in an ex-gay ministry returns to a same-sex partner. Who’s the bigger liar? Anne Heche or Ted Haggard? Is it sadder and more pathetic to cling to being queer against the evidence, or to cling to being straight?
Which is admittedly off-topic, but the point is, laws concerning gays are difficult because of sexual fluidity. You can’t account for every possible permutation of one’s sexual orientation.
posted by Alex on
Who’s the bigger liar? Anne Heche or Ted Haggard?
Ted Haggard. Granted I avoid gossip programs (ET, Access Hollywood) and as much of the “entertainment news” as I possibly can, but I do not remember Anne Heche taking the position that gay people need to be cured, converted, or “saved” as they represented a threat to “The Family.” She wasn’t raising money citing the “homosexual threat” while in a relationship with Ms. DeGeneres.
posted by Carl on
–
Which is admittedly off-topic, but the point is, laws concerning gays are difficult because of sexual fluidity. –
No, they’re not, actually. Most gay people do not ever become straight or once they are out and in a position to use these laws, go back to opposite-sex relationships. The fact that you had to use Anne Heche – who has a bad history of relationships gay or straight and who has also had a history of mental illness, yet has never, ever claimed she went “ex-gay”, even when her mother tried to use her for her lecture circuit – says it all.
Using your logic, laws for straight couples should be abolished because some people who marry opposite sex partners turn out to be gay.
posted by ETJB on
The U.K. MP’s are going to chose how to writes their nations own civil rights laws.
In the U.S., most sexual orientation-inclusive civil rights laws tend to have certain types of businesses or private clubs that are exempt.
So it would depend on what the “gay-specific accommodations” where and if they are excluded.
As for the proponents of the state marriage initiatives; the leadership is filled with frauds.
It is nice to see some criticism of the leadership here, when its mostly been focused on the ‘gay left’,
posted by James on
How would this law affect Lou Reed, Sean Hayes, Alan Cumming, David Bowie, Tom Osborne, Kevin Spacey, Jodie Foster, Kenny Chesney, Clay Aiken, etc.? Which partner would Oprah have to choose? And all those couples that hook up at Pride functions–there are many lesbian/gay couples who still retain the “queer” identity. Shouldn’t the law apply to them?
Would you have to prove you were born gay, or just in a gay phase?
It’s interesting, as a side note, that gays support therapy for transgender but don’t support therapy for ex-gay. It would seem much more difficult to change sex than to change sexual orientation. Why is gender fluid and orientation not fluid? Also, there is just as much proof that transgender therapy works as ex-gay therapy–which is none for either.
posted by james on
Umm–I meant “Tom Robinson.” Remember, I’m in Omaha, so it’s a natural mistake.
posted by Fitz on
Anyway.. I?m from Michigan and the campaign for our marriage amendment was like many around the country at that time. People knew it was both a definitional amendment and prevented civil unions.
Their was not much talk of existing benefits (plus people did not even know that same-sex couples were receiving marriage benefits with state money- That was all on the QT to begin with and recently enacted)
Their was no long drawn out campaign and the gay side seemed to have very little resources.
“During the campaign to pass the anti-marriage amendment, proponents assured voters it would not affect domestic partner benefits, then immediately upon passage spun round and claimed that for the state to grant DP benefits would unlawfully constitute recognition of “a union similar to marriage.”
“Of course, this isn’t really an unintended consequence of the amendment, just a consequences hidden from the public through social conservative deceit.
Its just not true. There was no campaign to decieve anyone about benifits confered to by the States. In fact their was active talk about the fact that this case would come up, as stated most people did not know about the Universities only recently enacted policy. No deception ever took place because no one ever cried fowl.
People in Michigan (like Wisconsin) Knew what they were voting for.
posted by Carl on
“How would this law affect Lou Reed, Sean Hayes, Alan Cumming, David Bowie, Tom Osborne, Kevin Spacey, Jodie Foster, Kenny Chesney, Clay Aiken, etc.?”
Half the people you listed have never said they’re gay. Some of the others, like Alan Cumming, are in committed same-sex relationships.
I’m not really sure what the point is of most of what you’re saying, actually. That you seem to think all gay couples should be judged based on celebrities is odd.
posted by James on
Here’s the point–how can you pass a law on gay civil rights if sexuality is fluid? How can you pass a law if people choose not to be identified as gay? Could Kevin Spacey enter into a partnership with a close friend? Which of Alan Cummings’ spouses would the law apply to?
The reason I use celebrities is because they are people we all know–but each of knows people in similar circumstances. We all know of opposite sex couples which began at Pride rallies and which both the man and woman still identify as “gay” because, all evidence to the contrary, that’s how they see themselves. Should this law apply to them? If they’re going to identify as a gay couple, shouldn’t they suffer the consequences?
Is a couple where one is transgender illegal until the last operation?
(This circumstance led to the off-topic question–Why is gender fluid and orientation fixed from birth? Why is the experience of transgenders valid and ex-gays not? Anyone? Anyone? Bueller?)
posted by John on
People identify as being straight and theres laws that deal specifically with that. Why should gays get the proverbial shaft?
As for gender being fluid, I know a few trans, and most of them feel they arn’t fluid, but rather they were born as the wrong sex. IE they believe they are a girl or a guy, and its not some middle ground.
Of course they do move to some middle ground because completly changing your sex is physically impossible.
As for why is one valid and the other isn’t, without trying to get judgmental, i think it has to do with the fundamentals of the “ex-gay” movement. It’s been beaten to death by scientists and sociologists and un-scientific and sometimes downright miss informed (for example, alot of stastistics they use are horribly slanted because of how the data was aquired). Should this be the case ? Perhaps not, but the movement isn’t doing itself any favors by taking this “you can be whatever you want if you try hard enough!” approach that doesn’t work for most people.
Should they both be respected? I think so, as long as it comes from the individual, and not from some cookie cutter stereotype thats being imposed on them due to society. IE: I have to be straight because of.
posted by John on
last line should be:
IE: I have to be straight because of the value system of my culture.
Not sure why it got cut off :/
posted by Mark on
You can pretty much have a gay only hotel if you restrict your customers to one sex, which is legal in California.
posted by Carl on
-Here’s the point–how can you pass a law on gay civil rights if sexuality is fluid? How can you pass a law if people choose not to be identified as gay? –
So no civil rights laws should be passed because some people don’t want to be identified as gay?
That’s like saying some blacks supported segregation or some women didn’t want to vote, so why pass laws favorable to those who opposed segregation or wanted to vote.
posted by James on
I think the laws should only apply to those who choose to identify as gay. I don’t see why Kevin Spacey or Alan Cumming or those like them should have to suffer because strident gays have created a backlash. I also think that if a lesbian/gay man couple wants to identify as “queer,” they shouldn’t have access to any of the benefits of heterosexuality. It should be illegal for them to get married or form a civil union.
posted by Bill from FL on
How about this: Can a publicly oriented (not private club) gay bar here in Red State No Law against S/O discrimination Florida say to a bartender applicant: We will not hire YOU because you a Heterosexual, female, and a Born Again Christian? Can they refuse service? (Let’s assume the city is not a gay friendly one with an SO ordinance)
Guess which category (s) has protection.
posted by Alex on
James: I can normally follow your posts (regardless whether I agree or not) but you lost me with your first post. …but the point is, laws concerning gays are difficult because of sexual fluidity.
If a law says: “You cannot discriminate based on sexual orientation” where is the difficulty? Gay, straight, or bi is considred legally irrelevant.
If the law (as the Michigan Const. Amendment does) “a marriage shall be considered only a union of one man and one woman for any purpose” there is again no difficulty in application.
posted by James on
Gay is not a state of being–it is a way of describing your identity. Sexual orientation is fluid–calling yourself gay is a way of trying to simplify and control your orientation. Therefore, it seems impossible to talk about gay discrimination–especially since there are opposite sex couples (described in earlier posts) who choose to identify as gay or queer.
Look at the latest news about Ted Haggard. He chooses to identify as straight even though it’s clear his orientation is fluid. The same with Rosie O’Donell, who identifies as gay though she’s had feelings about men. Who has more self-deception–Rosie or Ted? And how can you write a law which applies to either one of their orientations, since at any given moment, they might change partners?
posted by Alex on
James: The laws are not gay/straight specific (with the exception of the marriage bans which define marriage as one man and one woman) therefore your comments about “fluidity of orientation” is irrelevant.
posted by James on
Does the definition of “one man/one woman” apply to a gay man/lesbian couple who identify themselves as queer? Why should they be able to marry? If they identify as gay, shouldn’t their marriage be illegal?
Why should one of Alan Cummings’ marriages be legal and the other not? Is it fair that some people have the choice and others don’t?
posted by Alex on
As long as they are one man and one woman they meet the legal criteria to be married. Their sexual orientation is irrelevant to the question. (Why, however, would a gay man and a gay woman get married in this day and age, anyway?)
Why should one of Alan Cummings’ marriages be legal and the other not? Is it fair that some people have the choice and others don’t? I do believe you have it surrounded, James. Why should my relationship with David be non-legal but my brother’s relationship with Sofia be legal?
posted by ETJB on
Sexual behavior might be fluid, but sexual orientation is not.
Civil rights laws that include sexual orientation simply seek to provide equal opportunity and treatment.
They apply to heterosexuals and homosexuals or bisexuals. Like a person’s religion it may not always come up in employment, education, housing, health care, etc. transaction but it should be a non-issue.
Sexual orientation civil rights laws may or may not apply to transgenderism. It depends on how the law is written. However, sexual orientation and gender identity are not the same thing.
In terms of marriage law. At least in America, the courts tend to look at the sex that you born with to determine if it falls under the ban on same-sex marriage.
However, civil rights laws often deal with equal opportunity in the private sector as opposed to government treatment.
posted by James on
Ted Haggard came out today as “100% heterosexual.” How is that more self-deceptive than Rosie O’Donnell’s “gay 24/7” attitude? Why is the gay community unwilling to admit any fluidity or flexibility in sexual orientation?
I have enough feeling about women to have a sexual relationship, and if I wanted, I could get married. It’s just that my feelings about women aren’t as strong or deep or physical as my feelings about men. It seems wrong to involve a woman in a lukewarm relationship. I would be this is the reality for a lot of men who identify as gay.
I’m not a bisexual. My feelings about men and women aren’t equal. I am more likely to be in a relationship with a man than an woman, though it is not outside the realm of possibility that I might end up in a lifelong, sexually exclusive relationship with a woman. It’s possible, but extremely unlikely. Still, who knew Tom Robinson wouldn’t be so glad to be gay? The gay mythology of once-gay/always-gay needs to be adjusted to fit the reality of sexual fluidity.
posted by Bill from FL on
Hi James,
Regarding laws and coverage if one may change partners….
I don’t have time to give you a link, but take a look at state laws against SO discrimination. In NJ (my home state) employers were required to post the official “NJ law prohibits discrimination based on affectional or sexual orientation” in the employee breakroom with “dept of labor” posters and other relevant places. If you google the poster or the statute you will find it. It explicitly categorized heterosexuality, homo, and bisexuality.
posted by daleaWe all know of opposite sex couples which began at Pride rallies and which both the man and woman still identify as \"gay\" because, all evidence to the contrary, that\'s how they see themselves. on
Quote:’We all know of opposite sex couples which began at Pride rallies and which both the man and woman still identify as “gay” because, all evidence to the contrary, that’s how they see themselves.’
I know of no such couples, after over 30 years of Pride parades. Not one. Nor have I ever heard of such a couple. Nor read of one. It is not at all clear, as usual, what you are talking about. Looking at your list of ‘celebraties’, again who are these people? Five names were unfamiliar to me. Not all of us learn about gay people while waiting in line at the grocery.
My thought on the English Inns. It depends on how they solicit business. If the place is one that advertises in general publications, is openly shown to be an inn on a major road, is licensed to serve the buying public; then anyone who shows up should be allowed to stay there. If it is a private home that rents rooms out to people referred by word of mouth, then it shouldn’t. Especially if the owners also live in the home.
To recapitulate; a for profit inn on a major highway should take anyone who can pay and meet minimum logical standards, should be a public convenience. A home in a residential neighborhood where the owners reside should have a lot more leeway. BTW there was the Havana Inn in Oklahoma City, which billed itself as the largest gay hotel in the world. It always accepted straight couples and singles. Either they freaked out and asked for their money back or liked it and stayed. Given the opportunity, it appears lots of women traveling feel much safer when there are bunches of gay men around. This comes as no surprise in light of statistics that show gay men are the least violent of all US men. Check out Nivins ‘The Soul Beneath The Skin’ for more details.