Civil Rights and Discrimination

ENDA

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Walter Olson offers a thoughtful critique of the Employee Non-Discrimination Act, while the conservative Washington Times gives in to anti-ENDA hysteria. To demonstrate:

Walter Olson: A classical liberal stance can reasonably ask the government itself to behave neutrally among different citizens with their differing values and aspirations, but should not attempt to enforce neutrality on private citizens themselves. … We [risk introducing] a new presumption—familiar from the prevailing labor law in parts of Europe—that no employer should be free to terminate or take other “adverse action” against an employee without being prepared to show good cause to a judge. That is exactly the goal of some thinkers on the Left, but it should appall believers in a free economy.

Washington Times editors: The act would…grant privilege to homosexual men, lesbians and others who can’t figure out who and what they are. … Employers, religious and secular, should have the right to insist that men dress like men in the workplace; he can dress in milady’s frilliest frock where such frocks on men are better appreciated.

It’s probable the Senate will pass ENDA this session and the House most certainly will not. That creates a campaign issue for the Democrats to run on, which is why they only move on ENDA when they’re not in control of both chambers (it was kept bottled up in committee during the first two years of the Obama administration, just as it was when Bill Clinton was president and Democrats controlled Congress).

I added this to an earlier post, but it was buried so I’ll repeat here. Long-time readers know that I have been, and remain, equivocal about ENDA. Yes, other minorities subject to various degrees of employment discrimination are protected by federal statute, and thus so should gays, is an understandable argument. Also, it would send a strong message that the federal government views anti-gay discrimination in the workplace as unacceptable. I get that. On the other hand, we’ve seen over the past decades a huge rise in frivolous lawsuits charging minority or gender-based discrimination with little or no reasonable evidence, which are nonetheless typically settled by employers because of the cost of litigation and “you never know what a jury might rule.”

In the case of those with disabilities (who, like gay and transgender employees would be under ENDA, are not subject to mandatory hiring and promotion preferences based on statistical analysis), the risk of opening the door to an employee’s discrimination suit is correlated with a drop in hiring (because those hires, if subsequently fired or not promoted, can sue for discrimination), the opposite of the anticipated result. Also, there is scant evidence that discrimination against gays in the workplace is widespread.

I’d welcome an executive order (or law) saying government contractors must not discriminate on the basis of sexual orientation or gender identity, which Obama refuses to issue (despite having promised to do so during the election). And I wouldn’t lobby against ENDA; but I don’t see it as the priority activists have made it, either.

Update 1. On Nov. 4, a larger than expected number of Republican senators (7) joined 54 Democrats in voting to formally begin considering ENDA. “The 61-30 margin virtually guarantees its passage this week [in the Senate],” reports the Washington Post.

Symbolism is important, so better than expected is, well, better than expected. I only wish ENDA was a better vehicle for expressing support for gay legal equality. But I share many of Stephen Richer’s qualms.

Update 2. Paul Ryan Signals Conditional Support for ENDA, with an emphasis on conditional. Actually, it might pass in the House if brought up and if limited to sexual orientation, but gender identity that extends to non-op and pre-op transsexuals’ physical-gender nonconforming dress and restroom use is going to be a no go, I believe.

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“This law is no different. . . “

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The U.S. Olympic Committee is doing its best to tread a very fine line for Sochi:

The athletes are always going into countries with laws different than his or her own country. They’re going to agree with those laws in some ways, they’re going to disagree with those laws in other ways.  It’s our strong desire that our athletes comply with the laws of every nation that we visit. This law is no different.

It’s true that law, in the abstract, means roughly the same thing no matter where you are: It is the rules citizens and even visitors are expected to obey.  And because Olympic athletes by definition must visit many countries, it’s hardly unreasonable to expect that they should not intentionally break the laws of any country in which they compete.

But is the Russian law truly no different from any other law?  Certainly athletes at the Sochi games should not murder people or steal or commit rape.  Even laws that have less universal agreement should generally be obeyed, both out of respect and prudence.

The Russian law, though, prohibits propaganda.  In itself, this is an indication of illegitimacy, at least by modern standards.  The law also prohibits only propaganda of a very specific kind.  Here is the closest I have been able to come to an English translation of Article 6.21 of the Code of the Russian Federation on Administrative Offenses:

Propaganda is the act of distributing information among minors that 1) is aimed at the creating nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations.

One of the cornerstones of law is clarity.  People must know, within reason, what the law requires or prohibits.  This law is a model of vagueness.  What are “nontraditional sexual relations?”  For that matter, what are “traditional” ones?  Can Russian TV run “Sex and the City?”  Discuss.

Still, we clearly know what the Duma and Vladimir Putin intended — Shut up about the gay rights.  More specifically, shut up in front of the children.

This a a modern spin to remove the stigma against laws about propaganda.  Everyone wants children protected.

But children are everywhere.  More specifically, any form of journalism in the modern world, from NBC to the internet, may be seen by minors, which means the practical effect of this law is to prohibit any public discussion of gay rights.  The invocation of children is superfluous to the goal of banning pro-gay speech.

And that equates exactly with prohibiting any chance of achieving gay rights.

Absent an explicit equal protection guarantee, minorities have little but speech with which to make their case.  By definition, minorities must persuade a large number of the majority if they are to have any peaceful political participation at all.  Majorities seldom change their minds just because.

The Russian propaganda law is ideally designed to prohibit not just Russian discussion of gay equality, but to make sure it doesn’t happen when Russia is on the world stage.  At its best, this law is little more than Don’t Ask Don’t Tell.  At its worst, it is the first step toward a set of Nuremberg Laws for Russia’s lesbians and gay men.

This makes it not just important to mock the law, it makes it imperative.  However, that can be done respectfully, even joyously.  Rainbow fingernails? Perfect. Holding hands?  Sweet.  These and hundreds more small gestures skirt the law without violating it.  Maybe the rainbow fingernails are a fashion statement.  And holding hands is just holding hands, right? Heck, in post WWII Russia, this was a postage stamp!

The discussion of gay equality in Russia has a long way to go, but reliance on state control of information will not help it be seen as a modern nation.  It will be uncomfortable for Russia’s population to experience, within its borders, the increasing support among heterosexuals for gay equality.  But there is no wishing — or legislating — away that conversation.

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Back to Basics

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Same-sex marriage came and went in the US Supreme Court, and the the most reactionary Republican dominated state legislatures responded by — passing new laws restriction abortion.  While the high court was deliberating a case challenging the power of Congress to prohibit or punish same-sex marriage under state law, Texas, Alabama, Mississippi, South Dakota and Indiana were all exploring creative ways to provoke the high court to revisit Roe v Wade.

The lack of an outcry about U.S. Windsor is partly due to the fact that the opinion left those states’ anti-marriage laws intact.  But the renewed focus on abortion and Roe, at a time when the highest court in the land was setting down a marker about marriage equality suggests something else is at work.

That something else can be seen in the non-reaction in California to the opinion overturning the notorious Prop. 8. In 2000, California voters passed Prop. 22, an initiative statute prohibiting same-sex marriage, with 61% of the vote.  The state Supreme Court overturned Prop. 22 as a violation of the state constitution in 2008, which prompted Prop. 8, an initiative that amended the state constitution itself to prohibit same-sex marriage.  Prop. 8 got a little over 52% of the vote, but a win is a win.

So California’s voters must be furious about the decision in Hollingsworth v Perry, right?

If so, it’s hard to see.  Less than two days after the ruling, the Ninth Circuit Court of Appeals took the final step to permit same-sex marriages again in California, and while a very few of the usual suspects showed their faces to television cameras at the subsequent marriages throughout the state, there are no signs of outrage among the voters whose will was thwarted.

Opposition to same-sex marriage is different from opposition to abortion.  There is a real and substantial moral question with abortion: At what point does human life begin?  In the 40 years since Roe, that moral question has remained alive and vibrant, and the constitutional argument about abortion has seldom flagged.  Moral feelings about abortion start strong and tend to stay strong.

Not so for same-sex marriage, where moral feelings may have started strong, but have weakened substantially over time.  The moral consensus around same-sex marriage was collapsing even before the Supreme Court weighed in.  With each new iteration of the issue, voters see less reason for opposition, more reason in the arguments made for equality.  The moral argument against same-sex marriage is no more than the moral argument against non-procreative sexual activity; once heterosexuals can see their own procreative sexual desires in the broader context of a world in which procreation is controllable, the idea of sex for other reasons — pleasure, relational intimacy, emotional bonding or just for the hell of it — moves homosexuals from their historical outsider status to a proper role as fellow members of the human family.  Procreation is a good thing, but it is not all that sex is for.

The shift back to abortion for the old guard of the GOP is some evidence that this cultural shift on same-sex marriage is taking hold.  It is harder and harder to argue against the images of joyous couples getting married, and now joyous heterosexual friends and family are joining in the celebrations.  Connection and inclusion are moral instincts, family imperatives, that it takes an effort to deny.

There is still a strong sense that abortion is worth the effort.  For a small minority, the fight against same-sex marriage will continue to be a priority.  But the continent on which they once stood is becoming more of an island every day.

 

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The ENDA Tease

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The long-sought Employee Non-Discrimination Act was re-introduced in Congress this week. Senate passage appears likely, with a smattering of Republican support. However, it remains unlikely ENDA will make much progress in the Republican-controlled House.

When Democrats controlled both chambers during Obama’s first two years in office, ENDA was kept bottled-up in committee. Democrats said they feared Republicans would demagogue the issue, and some would have, but with a large majority of Americans favoring passage of workplace nondiscrimination legislation protecting gay Americans, it’s more likely this “wedge” issue would have worked in the Democrats’ favor. Indeed, not passing ENDA (in line with its attempt to scuttle repeal of “don’t ask, don’t tell” and making no serious attempt to pass immigration reform), allowed Obama and congressional Democrats to run on the issue and fire-up their base.

And then there’s this, as Metro Weekly reports:

the White House continues to delay on a long-called-for executive order that would prohibit federal contractors from LGBT workplace discrimination—a move that would protect 20 percent of the civilian workforce.

It was a little more than a year ago [White House senior adviser Valerie Jarrett] informed advocates during a meeting at the White House that Obama would not sign such an order at that time, despite promising to do so as a candidate for president. Pressure has increased on the White House to act since then, with … [advocates] calling for Obama to sign the executive order and arguing such a move would build momentum for ENDA. However, the president hasn’t acted, instead arguing … that the administration supports passage of an inclusive ENDA that protects everyone….

In April 2012 after the White House announced no action would be taken on an executive order, advocates…were told the White House would conduct a study on LGBT workplace discrimination. One year later, with ENDA on the verge of reintroduction, no study has been released. When asked for an update on the reported study, White House spokesman Shin Inouye stated, “We continue to study the issue.”

ENDA isn’t going anywhere in John Boehner’s House. Democrats would like to capture the House. Obama and his advisers believe not signing an executive order will help them to do that.

More. As long-time readers know, I’m of two minds about ENDA. It’s another federal regulatory scheme, and there are relatively few documented cases of overt workplace discrimination by private-sector employers. Small employers would face added liability risk when they hire and then fire (or fail to promote) openly gay employees, who could bring baseless yet costly suits which would most often be settled with a payoff, which is how employers most often resolve gender- and race-based discrimination suits. Avoiding this risk is one reason why the Americans with Disabilities Act (ADA) has actually led to a decrease in the hiring of people with disabilities.

And there is the libertarian argument that business owners should be able to hire those who they want to hire.

On the other side, passing ENDA sends a strong message that gay people deserve similar workplace protections as other minorities (although ENDA , quite rightly, does not include “disparate impact” enforcement provisions, which in civil rights and equal-employment statutes have led to de facto gender- and race-based preferences).

Federal contractors agree to accept numerous additional restrictions in order to qualify for government work, so I’m less two-minded about issuing an executive nondiscrimination order that applies to them.

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Privacy As The Enemy

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Sally Ride is an American hero.  She is also an icon for women’s equality.

And, as Andrew Sullivan puts it, she is the absent heroine of the gay rights movement.

That is not necessarily damning.  There’s only so much one human being can do with her life.

But I don’t want to let Ride get off as easily as the media is allowing.  The New York Times obituary is typically lazy:

Dr. Ride was known for guarding her privacy. She rejected most offers for product endorsements, memoirs and movies, and her reticence lasted to the end. At her request, NASA kept her illness secret.

There are different kinds of privacy.  Resisting the commercial temptations of fame is not the same thing as keeping the fact that you have cancer a family matter.  And neither of those is the same as staying in the closet.

Ride was born into the two revolutions that directly affected her life: women’s equality and gay equality.  She took up one of those revolutions, and rejected the other.

Her life’s work was to make sure girls who were interested in science would not feel the pressure she faced to repress that inner drive.  She was instrumental in helping to change that, and the world is better for her accomplishments.

But the gay rights revolution was not her thing.  Even those of us who pay close attention had no idea she was a lesbian, much less a woman who had maintained a 27 year relationship with another woman.

No one has an obligation to be politically active.  Vito Russo, in the new HBO documentary about his very politically active life, articulates the point well:

This is a good question: What makes people political in their lives?  The world is full of injustice.  Some people it bothers, some people it doesn’t. Me, it bothers.

The injustice of gay inequality, and particularly the injustice of the closet did not bother Ride.  Or, maybe more accurately, it did not bother her enough to do anything with the public side of her life to try and change it.  She simply accepted the closet, and took advantage of the work that others were doing on that front in order to live in a not-very-public-but-not-entirely-private lesbian relationship.

She shares this approach to the gay rights revolution with Mary Cheney.  They are among the free-riders of this struggle, letting others do the fighting.

The psychological damage that cultural homophobia did to those of Ride’s generation cannot be underestimated, and maybe her passivity can be forgiven or excused or pitied.  In the world she grew up in, that brand of privacy was often the only natural protective device that those who lacked Russo’s political spirit and intolerance of injustice had.

But it’s time to retire privacy as the Get Out Of Politics Free Card.  Fear can still justify the closet in many places and circumstances.  So can personal economic strategy, I suppose.  But not privacy.  That cramped isolationism is exactly the thing we are fighting.  It’s a form of self-indulgence at best, and more often it’s just shame.  We should draw a distinction between external forces that make coming out problematic, and internal ones that are corrosive remnants of an older view of homosexuality.

Even heterosexuals are lining up to support our equality today.  Ted Olson and David Boies, Lady Gaga and Brad Pitt, Ben Cohen and Scott Fujita are on the front lines of our battle.  The bar should be extremely high for any of us to remain aloof from our own fight for our own self-worth.  Every homosexual does not need to be out in the streets if they are not politically inclined.  But that’s not a matter of privacy, it’s a matter of preference.  It should go by its right name.

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Privacy, Silence, Neutrality and Anderson Cooper

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I am as glad – and grateful – as anyone for Anderson Cooper’s non-coming-out coming out.  There are some lessons in this story worth talking about.

People who know Cooper seem to agree with him that he was not really in the closet except with respect to the general public.  That is a telling fact.  As the walls of the closet have come down on the private side of people’s lives, there is still that remaining door that can be opened or closed to the public.  The people we know on our side of the door – the private side – are far more likely today to know we are homosexual than they ever have been.  Cooper enjoyed that private side of the closet with his family and friends.

But Cooper is not like the rest of us (and not just in what he does for a black t-shirt).  For those of us without a public face, the need to come out or not to others – to decide whether to open that door — is a recurring issue; we are always meeting new people, and regularly face the problem of how much to reveal to whom, and in what circumstances.

People like Cooper who have a large public reputation have to deal with this a little differently.  Word spreads about the famous, particularly about something as personal and controversial (or at least pretty interesting) as homosexuality.  News of my homosexuality never hit Twitter; it never really achieved a threshold of being news.  For Cooper, opening that door once to a world that knows him as a personality pretty much brings him out in toto.  There will still be pockets of cluelessness, but for the most part, this is a one-time deal for someone of Cooper’s stature.

The Entertainment Weekly story that got this story moving makes the point that it’s possible for even celebrities today to come out without its being a big deal, and Cooper’s example contradicts that (in the short term, since it was kind of newsish) but reaffirms the larger point, having such a short shelf-life.  Writing this post all of two days after Andrew Sullivan broke the story already feels like I’m stretching it out.

But that’s where the political aspect of sexual orientation comes in.  For me, when it comes to sexual orientation and politics, I was born this way.  It has taken me a long time to accept that some people – a lot of people – are not born political, or at least don’t take to politics naturally.  I see a need for lesbians and gay men to take political action, but as people who are more activist than me can tell you, it’s always been an uphill battle.

Cooper reports on political stories, but as a journalist he should not be an activist.  As a gay man, that puts him in a difficult spot.

A lot of politically active lesbians and gay men resent celebrities who are privately lesbian or gay, but have not opened the public door.  We have an enormous public relations job to do, and need all the help we can get.  That is one of the things that animated the movement to out politicians and celebrities – the idea that they had an obligation to use their public face to help us all gain equality.  The worst of the worst were the ones who worked against legal equality, but the desire for even neutral or supportive public figures to come out – or be dragged out – came from the mathematical problem of being a minority in the first place.  We start out with numbers that are staggeringly against us in a democracy, and then have the additional problem of members of our group who won’t even admit they belong.

Cooper seems to have struggled with that.  He mentions “the unintended outcomes” of maintaining his privacy, and says he may have given the impression that he is trying to hide something that makes him uncomfortable, ashamed or afraid.  His coming out was intended to – and does — clarify any misimpressions.

But those misimpressions are, and always have been, a perfectly natural consequence of silence.  If about 95% of the population is heterosexual, and someone doesn’t positively identify as homosexual, is it unreasonable for people to assume that individual is straight?  The open discussion of homosexuality over the last quarter century or so changes the bet somewhat, since silence now looks more telling, when it isn’t downright implausible.  Yet many people still cling to the fig leaf of privacy as if it were without consequence.

In this impressive compilation of Cooper in the field, one quote stood out: “Journalists don’t like to become part of the story, but unfortunately they have been made part of the story. . . . “  That, I am afraid, is true of sexual orientation as well.  Our inequality is embedded in the status quo that recognizes only heterosexual relationships, and if we say or do nothing, we are part of a story that tolerates and accepts our second-class status.  We cannot get out of that story, or create a more appropriate status quo unless we act, unless we speak, unless we stand up as lesbians and gay men.

The false neutrality of silence is clear in this story about Jitters and Bliss Coffee.  The company claims to be neutral when it comes to marriage.  They say they don’t have a public position on the matter, and “respect the views of all their customers.”  To demonstrate that neutrality, they joined up with the National Organization for Marriage to offer NOM members a non-Starbuck’s coffee option, since Starbuck’s has taken a position supporting marriage equality.

That is the neutrality of the status quo, being nakedly manipulated to preserve itself.  Our silence, their silence, anyone’s silence is a vote for NOM, is a vote for the bias and prejudice that are woven into the fabric of current law.

In this politicized environment, privacy equals silence, and silence equals — well, not death anymore, but certainly some spiritual damage.  That was the unholy balance that Cooper upset.  Neutrality is a primary virtue of the journalistic profession, but when “neutrality” means “the status quo,” and if the status quo is, itself, biased, then neutrality is not neutral.  Anderson Cooper’s coming out helps expose that truth.

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Chess

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The sound you hear is Jay Carney breathing the world’s deepest sigh of relief.

For him, the squirming and hedging and sweating are over.  The President is on record supporting same-sex marriage.  There is an answer now to the question.

Yes, it’s Obama’s personal view, and yes, he’s said he supported same-sex marriage before, and then wandered afield.  But when you’re in any other political office, you can take positions that might play out differently when you’re being asked about the question in the presidential arena.  Ask Mitt Romney about health care.  Or anything.

Of course I think Obama did the right thing morally.  But for those of us who enjoy the chess of politics, I also think it was exquisite strategy.  First, after the loss in North Carolina, Obama’s campaign had a convention to worry about.  In that place and with that political context, any fudging on the bottom line would have been unacceptable to a lot of conventioneers at best, and could have led to some very ugly protests inside and/or outside the convention hall.

That’s taken care of now.  The only possible protests left will come from the motley, disgruntled religious types, who aren’t part of Obama’s base, and don’t figure into a winning electoral strategy for him.  Those protests, if they happen, now come under the heading of So What?

And that leads to the bigger point.  This is fine politics because it boxes Romney in with the worst part of his party.  Karl Rove poisoned the well on this issue, and now Obama is making Romney drink, and drink deeply.

Which Romney promptly did, and from a bigger cup than Obama could have hoped for.  Romney said he is not only opposed to same-sex marriage, but to any legal recognition of same-sex couples that approaches marriage equality — just what the worst part of North Carolina gave a big thumbs-up to.

How can Romney now appeal to the 2/3 of Americans who can no longer abide the complete exclusion of same-sex couples and their families from the law?  What he is stuck with are the politically tone-deaf, like the American Family Association and the Catholic League, who are so blinded by full marriage equality that they can’t see. . . um, straight.  Their hysteria increases in direct proportion to the growing support for full marriage equality, and for the middle ground of civil unions.  They are now 2/3 of the way to Spinal Tap’s famous eleven.

There are, of course, a lot of other issues, and an eternity until the election; lots of things are possible.  But on this issue, Obama just made his life a whole lot easier, and Romney’s a lot more difficult.  Obama has made it clear that he wants no part of the religious right’s intolerance on sexual orientation.  That’s a political strategy, and it’s a defensible moral stance.  But most of all, it’s got to be nice not to have to pretend you need the kind of votes that Bryan Fischer and the sadly devolved offspring of Billy Graham have to offer.

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