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Would Recognition of Same-Sex Marriage Also Mean a Ban on Private Discrimination,

if the theory is that sexual orientation discrimination is a form of sex discrimnation?

Many proponents of same-sex marriage rely (at least in part) on this theory, and at least one judge has accepted it. If Jane is barred from marrying Kate but is allowed to marry Larry, the argument goes, that's sex discrimination -- the law is considering Jane's, Kate's, and Larry's sex in deciding whom they may marry. Under similar circumstances, bans on interracial marriage are treated as race discrimination; therefore, bans on same-sex marriage should be treated as sex discrimination. Let's assume that this argument is indeed accepted, and courts hold that traditional marriage rules violate the Equal Protection Clause (or a state Equal Rights Amendment).

It seems to me that exactly the same argument would be available as to discrimination by private parties, under statutes that bar sex discrimination. If sexual orientation discrimination is logically sex discrimination under constitutional rules, then it would be sex discrimination under statutory rules.

After all, antidiscrimination law bars employers from firing people for dating outside their race. Under the logic of the Jane/Kate/Larry argument, the sex discrimination branch of that law would likewise bar employers from firing people for dating within their own sex. And the same would apply to housing, public accommodations, and any other places where sex discrimination is banned (though probably not scouting organizations, at least so long as the Girl Scouts can remain the Girl Scouts).

Nonetheless, I would think that quite a few people who are open to government recognition of same-sex marriage would be quite hesitant to create more restriction on private employers: For instance, the former would make lots of sense to many libertarians, but the latter would not. Moreover, some people who only mildly oppose same-sex marriage (for instance, because they recognize that the matter is largely symbolic, and that it makes little real difference to them whether same-sex couples are allowed to marry) might much more strongly oppose a new set of antidiscrimination laws, which would indeed restrict others' freedom of action. Yet while judges might conclude that sexual orientation discrimnation is sex discrimnation for Equal Protection Clause purposes but not for statutory purposes, others (perhaps enough to affect the result) may disagree.

Have you folks seen this being used as an argument, either for accepting this theory to justify a right to same-sex marriage (look, we can get bans on private discrimination this way, too!), or for rejecting this theory (if you accept it as to same-sex discrimination, then private discrimination will be banned, too!)? If you have, please post a pointer in the comments.

Please do not use the comments to discuss other arguments for or against same-sex marriage, or for or against antidiscrimination law, or for that matter the sexual orientation discrimination = sex discrimination argument on its own merits. I'd like to focus the discussion on the potential causal relationship between this argument and restrictions on nongovernmental discrimination. Many thanks.

Stephen M (Ethesis) (mail) (www):
Well, I think the argument works, mostly because the reverse argument has worked well.

For example, since the 1970s, Salt Lake County (Utah) has had a governmental ban on hiring discrimination on the basis of sexual orientation. That has led to people insisting that if it isn't right to discrminate in hiring, it should be right to discriminate otherwise and that if the government bans it for the government, private parties ought not to engage in it otherwise.

In employment the argument has a great deal of natural justice supporting it -- that sexual orientation (vs. behavior, though with privacy issues that gets swallowed up) ought not to affect hiring or be appropriate in hiring issues.
7.13.2005 9:04pm
Steve:
I have never seen an argument like this before. It seems to be backwards, though. I understand, although I don't agree with, the arguments that say marriage is traditional and we shouldn't touch it. But I don't understand the argument that you should be free to fire someone for being gay or for dating someone of the same sex. What's the argument for that? Oh, it restricts employers' "freedom of action," but there's no rational basis for employers to act this way, so I shed no tears. I would certainly expect the courts to intervene on the discrmination issue before they intervene on the marriage issue.
7.13.2005 9:04pm
Stephen M (Ethesis) (mail) (www):
Oops "it should be right to discriminate" should be "should not be right to discriminate" -- sorry about the typo.
7.13.2005 9:05pm
Anon:
"Nonetheless, I would think that quite a few people who are open to government recognition of same-sex marriage would be quite hesitant to create more restriction on private employers: For instance, the former would make lots of sense to many libertarians, but the latter would not."

This simply may be something that is only an issue from a libertarian framework, and not reflective of more widespread political/legal pressures. My impression is that resistance to sexual discrimination anti-discrimination laws is far weaker than to same-sex marriage, and that the former has been enacted by statute in far more states than same-sex marriage exists or is likely to exist in the near future (anyone have actual info to back this up?). Just a though.
7.13.2005 9:12pm
Perseus (mail):
This is not exactly the same, but it is related. Apparently, the University of Michigan treats discrimination against "transgendered" individuals as a form of sex discrimination based on a 2004 6th U.S. Circuit court case — Smith v. City of Salem — that says "sex" encompasses "gender identity and expression."

Michigan Daily News story
7.13.2005 9:43pm
Perseus (mail):
Oops. Here's the link to the Michigan Daily News story.
7.13.2005 9:47pm
Challenge:
I don't think you're going to get much of an argument about your hypothetical, assuming the Supremes agree with your premise. Seems like sound reasoning.
7.13.2005 10:03pm
Bruce Hayden (mail):
Since Eugene is the expert on Slippery Slopes, esp. here, I would ask if the argument for, say, polygamy, is really stronger than for homosexual marriages for historical and religious reasons, and homosexual marriages end up invoking sexual antidiscrimination laws, then why wouldn't polygamy do essentially the same thing? If not polygamy then, how about pedophiles?
7.13.2005 10:11pm
EstablishmentClaus (mail) (www):
Bruce,

I assume the difference is that in the case of polygamy and pedophiles, sex is not the determinative feature in whether person A can marry person B. In the case of polygamy, Married Martin can marry neither Single Steve nor Single Susie. Similarly, Humbert Humbert can marry neither Lolita nor Larry. Neither age nor marriage status are likely to be found to constitute a class protected from discrimination in any form, but certainly discrimination on the basis of gender is not implicated in either of your hypos.
7.13.2005 10:18pm
Keith Hilzendeger:
Eugene asks, "Would recognizing same-sex marriage also mean a ban on private discrimination, if the theory is that sexual orientation discrimination is a form of sex discrimination?"

If the history of race discrimination in marriage and in employment is any guide, I don't think that -- as far as institutional lawmakers go -- recognizing a right to marry would immediately lead to a ban on private discrimination. The Civil Rights Act of 1964 outlawed race (and sex) discrimination in employment, but it wasn't until three years later that the Supreme Court decided Loving v. Virginia, 388 U.S. 1 (1967), which held that bans on interracial marriage violate the Constitution. (Due Process? Equal Protection? You tell me.) And it took another 17 years or so for courts to finally agree that Title VII forbade a private employer from firing someone because they were involved in an interracial marriage.

To date, courts accept the equal-protection argument for allowing gays and lesbians to marry, but not for outlawing discrimination based on sexual orientation in employment. The Hawaii Supreme Court demanded that marriage licenses issue to gay couples on the Jane/Kate/Larry theory Eugene articulates. But courts reject it in the Title VII context, protesting that it would rewrite the statute.

Shameless plug - for more information about this, read my article at 13 J.L. &Sexuality 705 (2004).
7.13.2005 11:04pm
just me (mail):
It may be true that opposition is weaker for anti-discrim employment laws re sexual orientation, as opposed to same-sex marriage, but the employment context does raise some concerns that the marriage issue doesn't. Those concerns are enough to make me hesitate about adding to this one to the protected-class list.

First, unlike sex/race, and like disability, orientation is not self-evident (gaydar notwithstanding). So, as with disability, one element will have to be whether the decisionmaker KNEW or not. We already have the Orwellian situation where our race-discrim laws have led to constant bean-counting in HR, as no company wants the disparate stats to be bad evidence, etc. So now, to prove that we have NOT discriminated, we need to have "enough" of "them," meaning we need to ask. Instead of "don't ask, don't tell," it'll be "must ask" for employers, and "must tell" for anyone who wants to trigger the protection.

So when the bad employee sees the hatchet coming, does he/she cry out "hey! I just discovered I'm gay!" I'm cynical enough to see it coming. What do we do to make him prove it?

Further, the other path for some companies, rather than the hire-enough-of-them approach, is the old "don't hire them to begin with, as they're harder to fire." Adding someone to a protected class on the firing end always adds a cost on the hiring end, and it's solely an empirical Q whether the effect is large or small. But it does create one more way that previously indifferent employers might have an incentive to become suddenly curious about employees' bedrooms.

And finally, the whole employment argument is rooted in the idea that employees in category X have gotten a raw deal, whether by race, sex, etc. Sure, many gay employees have indidividually faced problems. But as a class, average employment and wages are not PERCEIVED by most observers as significantly lower, and are PERCEIVED as higher. Not sure if the data bear that out or if it's bogus, but unless the perception changes, there won't be much popular support for adding gays to the "downtrodden victims' list." In fact, I'd go far enough to say that IF employment law had gone first, we might not have seen the growth of support for marriage or civil unions, as the resentment against "one more group getting job protection" might have undercut marriage support.

All these reasons and more make the employment angle a bad strategy, I think, and if the employment angle is a natural outgrowth of the marriage arguments, then proponents would do well to hide that link until it's "too late."

Then again, I could be totally wrong. It is Wednesday, ya know.
7.13.2005 11:06pm
LiquidLatex (mail):
It sounds like you accurately lay things out in such a way where the legislature should take note and craft the new civil union/marriage laws as narrow as possible.

This just highlights the problem of the people that say "Oh it's a simple fix" when in reality even a new federal or state bill would require serious core changes to how the law is carried out. They're capable but sadly I don't know if they're up to the job of keeping good laws tailor made to eliminate any negative precedents.
7.13.2005 11:26pm
Jack Diederich (mail) (www):
Same argument, different subject. I'm for drug legalisization as long as it is legal to discriminate against drug users. Everyone is free to smoke pot but for the employers who's brand or service depends on having sober people working the counter they can do so all they like. If it doesn't matter discriminating employers will overpay (because they are hiring from a smaller pool) and go under.


I never laughed as hard as when an employer had me sign papers saying I would submit to a random drug test; the paperwork didn't get to me until I'd been there for a few weeks and I'd seen some C**s doing coke and some peons smoking pot in the parking lot. It was just CYA paper cover; organizations that make bad decisions (nepotism, inside-baseball politics, discrimination) die quite quickly on their own.


Government is a stickier matter, an established organization can't fail in the usual sense so it takes an outrageous amount of discrimination and years before the voters force politicians to stop non-optimal behavior.

7.14.2005 12:47am
lucia (mail) (www):
To answer what you asked: Have you folks seen this being used as an argument, either for accepting this theory to justify a right to...

Yes. I've read it as an argument both for and against gay marriage from time to time.

In comments at blogs the idea that legalizing same sex marriage will trigger gaining other rights is sometimes said directly. In more formally prepared documents (which are easier to google) it's generally said somewhat less directly. (In fact, the argument can be so oblique it's sometimes not clear whether the argument is that legal same sex marriage will trigger the other rights, like non-discrimination in employment, or whether ensuring non-discrimination in employment will lead us to same sex marriage. )


One interesting aspect of this sort of libertarian argument against granting same sex marriage because it would expand employement, housing and other protections is that it generally comes from people who then argue we should ban legal recognition of heterosexual marriage. Example: hit and run


If we are looking at it from a truly libertarian perspective, all the legal privileges attached to marriage -- whatever the gender of the partners -- are illegitimate, because they represent the government favoring one type of relationship over another. Why should a bond of lifelong platonic friendship be less "privileged" than a sexual relationship? Are single people, for whom such a bond may be the primary relationship in their lives, being discriminated against by the very existence of civil marriage? If the government can favor some relationships over others, can't it also regulate these relationships in some fashion and express majoritarian preferences for certain types of relationships?


So, in a sense, the fully libertarian argument is: Why have any official legal recognition with at all? Why not let people go get married by their respective clergy, but forget about all the civil recognitions, privileges, duties and so forth?
7.14.2005 12:54am
Kevin Murphy (mail) (www):
OF course, California has a heavy-duty sexual-orientation workplace anti-discrimination law already -- one that I cannot imagine be made any tougher. For example, an employer must allow an employee to cross-dress on the job. Now, I can understand gay marriage and general gay rights on the basis of biological or genetic determination, but clothing of whatever sort is behavior, not genetics.
7.14.2005 12:55am
Justin D. Hein (mail) (www):
Professor Volokh -

First, congratulations on your recent receipt of the Gary T. Schwartz Chair at UCLA Law School.

Second, I have heard this argument made before. Specifically, if the "sex discrimination route" is used to grant same-sex couples the right to marry, then the sex discrimination route can also be used to bar other, private discrimination against gays, lesbians, and bisexuals: specifically in the workforce.

This past spring at the University of Wisconsin Law School, I took a class (Law &Contemporary Problems: Sexuality and the Law) taught by Professor Jane Schacter, who teaching as a visiting professor at Stanford Law School this coming semester or year. There, we focused on all the potential avenues for attacking the current bar on same-sex marriages, among other issues of concern for same-sex couples (ex. adoption) and gay, lesbian, bisexual, transsexual, and transgendered individuals. This particular theory came-up, and the class took turns critiquing and praising the power of the argument. Unfortunately, I cannot remember whether it was praised for its ambitious nature or brought-down for overreaching. Regardless, the point was made.
7.14.2005 1:05am
LiquidLatex (mail):
Cross-dress in the meaning that a man enjoys wearing women's clothing or cross-dress in the meaning that a man is on the year+ long course of becoming a woman? Vise versa for women that enjoy wearing men's clothing and women that are seeking to become men.

I could very well understand granting some protections to people that are on a medically-proscribed destiny to switch legal gender.
7.14.2005 1:30am
hayesms (mail) (www):
I would think the argument that Title VII prohibits discrimination on the basis of sexual orientation would raise questions about legislative intent that would not be relevant in a sex-based EP challenge of same-sex marriage bans. This is because the 14th Amendment uses the term "person," while Title VII uses "sex," a word that arguably has a much more narrow meaning than words such as "gender."

A second difference I see is the presence of government action in marriage bans. This makes the bans much more problematic than private-sector discrimination for the same reason that courts have held that public-sector employees enjoy some constitutional protection against certain searches, infringements on the freedom speech, etc., while private-sector employees generally do not.
7.14.2005 1:31am
Challenge:
"To date, courts accept the equal-protection argument for allowing gays and lesbians to marry, but not for outlawing discrimination based on sexual orientation in employment. The Hawaii Supreme Court demanded that marriage licenses issue to gay couples on the Jane/Kate/Larry theory Eugene articulates. But courts reject it in the Title VII context, protesting that it would rewrite the statute."

Yes, as we all know it's OK to rewrite the Constitution, aslong as you never, ever rewrite a federal statute. =)

Suggesting some Courts may choose judicial restraint temporarily doesn't explain how a Court would rationalize doing one and not the other, when the logic applies equally to both.
7.14.2005 1:49am
Challenge:
"I would think the argument that Title VII prohibits discrimination on the basis of sexual orientation would raise questions about legislative intent that would not be relevant in a sex-based EP challenge of same-sex marriage bans. This is because the 14th Amendment uses the term "person," while Title VII uses "sex," a word that arguably has a much more narrow meaning than words such as "gender.""

You're confused. First, you talk about legislative intent, but then you focus on text. Are you making a textual argument or an original intent argument? Or are you just saying the ambiguity of the Fourteenth Amendment grants the Court license to do whatever it wants, rather than refer to the original intent or understanding of that amendmendment? If this is what you mean, then you are not following Eugene's question. Gender is held to "intermediate scrutiny" under equal protection clause jurisprudence while sexual orientation is subject to rational basis. One way to speed up the process, then, is to treat sexual orientation discrimination as gender discrimination instead of lobbying for raising the protection granted to sexual orientation. This is what Eugene has constructed in his hypothetical. Now, after the Supremes have ruled that denial of gay marriage is gender-based discrimination, how do they pretend the same logic doesn't apply to federal statutes? That is Mr. Volokh's very interesting proposition. Understand?
7.14.2005 1:59am
John Penta (mail):
Hayesms: Wrong, actually.

For instance, private employees have a generally-unrestricted right to strike.

Public-sector employees (at least at the federal level) are banned from striking by statute.
7.14.2005 2:40am
Jonathan M (mail) (www):
Here are two relevant Supreme Court cases up here in Canada:
1. Vriend v. Alberta
A private school fired a homosexual teacher, partly because he was homosexual. Court ruled it was discrimination. "sexual orientation" read into s. 15 of the Charter. Later on, this became the basis for the landmark Ontario decision Halpern v. Ontario which ruled that homosexuals were being discriminated against in barring them to marry one another (of the same gender).

2. TWU (trinity western unviersity) v. BCTF (bc teachers federation)

This court case is interesting (not just because I went there), because the court ruled in favour of a university which prohibited all premarital sex behaviour. By definition this included all homosexual behaviour as well since same sex marriage did not yet exist. That is, the BC teachers federation would not certify TWU to give education degrees/certificates because they prohibited this behaviour and future teachers might discriminate against homosexuals. So the BCTF discriminated because TWU was thought to discriminated. The court eventually ruled that they could find no evidence that their students discriminate in the classroom and that BCTF was discriminating contra TWU.
7.14.2005 4:22am
Jonathan M (mail) (www):
My mistake, it was the BC college of teachers, not the BCTF that was challenging TWU in the case above. My apologies.
7.14.2005 4:25am
Cyrus (www):
Hillel Levin just posted this very argument a few days ago at prawfsblawg:

Prawfsblawg link
7.14.2005 8:42am
Hugh59 (mail):
Oh really? And what would a law against private discrimination actually do? Well, you would probably see employees who suspect they could get fired establishing that they are in this new "protected category" so that they can be insulated from disciplinary action.

I have already seen this strategy used by underperforming employees. Better yet, the underperforming employee can take preemptive action by filing a claim of discrimination early...that way the employer knows that firing or disciplining that employee will come at a cost.
7.14.2005 9:59am
Shawn:
I have only heard this argument in conjunction with states that also have an Equal Rights Amendment (ERA) to their state constitution. As I understand it, non-lawyer that I am, the ERA elevates the level of scrutiny to "strict" which makes all the difference. This is why states like Hawaii and Massachusetts were forced to deal with the gay marriage issue earlier than, say, Florida which is only now starting to deal with it. (Southern Baptist-lead amendment to prohibit marriage, civil unions, and domestic partnerships where the latter two are "significantly" like marriage.)

In my area where the local county commission recently held a 6-1 vote to not use any county resource to promote or recognize gay pride, the language used in favor of non-discrimination tends to revolve around "equality" and "diversity" while the language against non-discrimination generally uses "children" and "religion" as its focus. The discussion of same-gender marriage as it might affect the right to discriminate hasn't emerged.
7.14.2005 10:18am
Daniel Chapman (mail):
"at the University of Wisconsin Law School, I took a class (Law &Contemporary Problems: Sexuality and the Law)... There, we focused on all the potential avenues for attacking the current bar on same-sex marriages, among other issues of concern for same-sex couples (ex. adoption) and gay, lesbian, bisexual, transsexual, and transgendered individuals."

Suddenly I'm no longer shocked at the repeated budget cuts to the UW system...
7.14.2005 10:21am
AK:
Volokh's big mistake is stating that "many libertarians" would support same-sex marriage, but not restrictions on private employers.

There aren't "many libertarians." There are about 200, they all have blogs, and they spend all day in the libertarian echo chamber fooling themselves into thinking that their views matter.
7.14.2005 10:47am
Rusty:
Here's a further thought. According to the code of judicial conduct, "A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin." If opposition to and refusal to perform same-sex marriages is determined to be "invidious discrimination on the basis of sex," would a practicing catholic, or member of another religious organization opposed to gay marriage be in violation of the code of judicial conduct?
7.14.2005 11:03am
Eh Nonymous (mail) (www):
Amusingly snarky and impolite comment on the "libertarian echo chamber." Funny, I see a lot more explicitly lefty and explicitly righty echo chambers in operation - although I try to only read the VC open hallway of conservatism (with its unrelated annex of Overlawyered) and stick to open, non-chambery spaces of rational thinkers who happen to be liberal).

Rusty: goodness, I'd been thinking the same thing myself. If a religion has as its core, founding beliefs (as articulated by its authorities or its practitioners, whichever) that the 5th amendment does not apply the 14th-Amendment-Jurisprudence Equal Protection Clause to the federal government, and that minorities can and must be discriminated against (not as in ending affirmative action, but as in internment camps or branding or what have you), then of course membership in and support of that organization should per se be a violation of the judicial code of conduct.

Of course, I suspect that I would find that active and willing participation in the Roman Catholic Church, without speaking against the pronouncements of some of its cardinals and some of its (currently applicable) Papal dicta, is also a violation of ethics- but of personal ones, not judicial ones.

Eugene: Your reasoning in the post seems sound. Because of Lawrence's "no rational basis" holding, and the established precedent regarding race and sex and similar discrimination, I don't see why employers would not eventually be liable (although under which theory?) for firing a competent employee on the basis that they date a particular person, rather than someone in the (employer's view, in the) appropriate category. Loving applies, doesn't it?
7.14.2005 11:14am
Clayton E. Cramer (mail) (www):
I have no question that legalizing same-sex marriage would broaden the antidiscrimination laws. Has anyone considered the conflict that it will create with the free exercise of religion clause? What happens when a same-sex couple goes to a fundamentalist church and insists that the pastor marry them? Will he be allowed to refuse? This was enough of a question that I understand that some drafts of Canada's new same-sex marriage law specifically provided that clergy were allowed to refuse to conduct same-sex marriages.

It would be tolerable if all of this were leading to a libertarian outcome, but it almost never does. I'm sure that the courts would soon decide that this form of discrimination was unlawful, and conclude that in a conflict between the free exercise clause and the mystical right to define one's own identity, the free exercise clause loses. Perhaps in the same way that <I>Shelley</I> v. <I>Kraemer</I> (1948) decided that enforcement of restrictive covenants through the civil process was a form of discrimination, a clergyman is effectively operating as an agent of the state in performing a ceremony that the state recognizes.

The courts would use the examples of how the federal civil rights laws have moved from those engaged in interstate commerce, to all companies above a certain size. We have the example of the printer in Seattle who refused to print same-sex marriage announcements because it conflicted with her religious beliefs, and was fined for refusing to do so. Also the landlord in California who refused to rent to unmarried couples because it conflicted with her religious beliefs. (I believe the final outcome was that the courts ordered the landlord to rent to them.)
7.14.2005 11:17am
lucia (mail) (www):
What happens when a same-sex couple goes to a fundamentalist church and insists that the pastor marry them?
I would think what happens is exactly what happens when a divorced man and his intended go to the Roman Catholic church and insists the priest marry the two of them, pointing out they have a legal right to marry. The Priest refuses.
7.14.2005 1:03pm
Rub:
If a person of legal age is allowed to marry any other person of legal age from the opposite gender, doesn't this mean that all persons have that same right? All persons have the exact same marriage rights as any other person. It is not discrimination when all persons face the same restriction on their actions.
7.14.2005 1:20pm
Craig234 (mail):
"If a person of legal age is allowed to marry any other person of legal age from the opposite gender, doesn't this mean that all persons have that same right?"

No.

Consider the analogy to the laws against inter-racial marriage which still existed in some states until 1967 when the Loving decision nullified them. If everyone can marry their same race, then there's no discrimination, right? Wrong. People who are in love with someone of a different race are discriminated against, even though they have 'the same right to marry someone of the same race as anyone else has'.

It's how you frame the issue: when you go from "the right to marry any consenting adult you like" to "the right to marry any consenting adult you like of the same race", you have introduced discrimination against the group of "people who want to marry someone of another race".

By the same token, *some people are gay*. The relevant equal right is "the right to marry the person you love", and by making marriage opposite-gender-only, you discriminate against gay people, by giving them the meaningless right to marry the gender they are not attracted to.

In one sense, it's even more discriminatory than the inter-racial marriage policy, because people presumably at least can still marry someone else of the same race under that policy, while gay people are just out of luck.

It's discrimination.

The issue it seems to me, is ignorance and denial about homosexuality. Too many still think it's a 'choice'.
7.14.2005 1:53pm
Rub:
Craig,
Thanks for your comments. I am not sure we will ever see eye to eye on this, but for discrimination to exist, a class would have to be created that does not now exist in most places. The class would be homosexuals, and it would be based on the behavior of the class. Once we start protecting a class of people on behavior, (regardless of the cause of said behavior)then there is no class of behavior that could reasonably be denied similar protections.
I do not pretend to know why a portion of the population is homosexual, and it really doesn't matter to my argument. A society should be allowed to decide that certain relationships are beneficial to that society, and therefore grant those relationships certain privileges, as long as it does not actively deprive individuals of their liberties in order to grant those privileges. Granting couples of of different genders privileges in no way deprives same sex couples their liberty to engage in their behavior. It does say that society has not deemed their relationship worthy of privileges in reward for their relationship. I do not believe that such conundrums should be decided by the judiciary, but should be decided through the evolution (or not) of societal norms and opinions through the democratic process.
7.14.2005 2:08pm
Nailman (mail) (www):
This does actually concern me to some degree. But to start off, let me state my moral view: Sexuality is designed by God for within the marital relationship between a man and a woman, and any sex outside of that is morally wrong (whether homosexual or heterosexual).

But that said, I ordinarily wouldn't be too concerned about hiring, or not hiring, homosexuals or others. I don't think it's fundamentally worse, morally, than, say, going out and getting drunk every night or something. So, as an employer, I don't think I necessarily should have the right to not hire people based on their sexual orientation. If it is interfering with their work, however, I do think I should have that right, just like I would have the right not to hire (or to fire) someone whose drinking habits are interfering with their work.

But there are several situations where this concerns me. Primarily, I think this is a concern for various Christian ministries, whether churches, publishers, etc., who seek to hire professing Christians. So far, as far as I know, religious organizations are still free to "discriminate" in this sense based on religion. If someone does not profess to be a Christian, they are free not to hire them.

Where my concern arises is with professing Christians who are openly homosexual or openly engaging in heterosexual sex outside of marriage. In my view, Christian organizations should be free to refrain from hiring such people, as many conservative Christians believe such behavior demonstrates that a professing Christian is not really a Christian -- that is, their profession is false. Conservative Christian organizations which want to hire Christians don't generally want to hire "false" Christians.

However, there are many professing Christians who disagree with this view and think that homosexuality, or even heterosexual sex outside of marriage, are fine, and there is no fundamental conflict between these things and orthodox Christianity.

So I can easily see a situation where a Christian organization refuses to hire an openly practicing homosexual because, in its view, such a person is not a Christian. But the person makes a profession of faith, and perhaps is a married homosexual. In this scenario, he/she argues that he does profess to be a Christian, and the organization just requires professing Christians, so the organization is really discriminating just based on his sexual orientation, not his religion. It seems quite likely to me, based on recent court decisions, that many courts would conclude that the discrimination in this case is based on sexual orientation; otherwise, the court is effectively put in the place of determining whether or not someone can be a Christian and a homosexual at the same time, which seems clearly not to be an issue that should be settled by the courts. Either that or we must throw out the idea that religious organizations can have faith-based hiring preferences, which puts us in the absurd position of requiring churches, for example, to hire pastors who do not believe what they are supposed to teach.
7.14.2005 3:00pm
dweeb (mail):
Allowing same sex marriage doesn't necessarily protect sexual orientation from discrimination - there would be no need to prove one's orientation in order to marry a member of one's own gender - straight people wouldn't want to take advantage of same sex marriage, but nothing would stop them if the were so inclined. On the other hand, discrimination law isn't based on allowing a person to do something that only a "protected class" wants to do, but rather denying them something others may enjoy based on class membership. It's like the difference between denyng an African American employment and outlawing an activity that almost no one but African Americans want to engage in. Since private discrimination laws hinge on class membership, their application would create problems same sex marriage doesn't - for instance, there would inevitably be affirmative action requirements, for a class that one could claim or renounce membership in at will (think Anne Heche.)

The scenario -

Mr. Smith: Mr. Jones, while you're eminently qualified, our affirmative action program compels us to fill this position with a someone of a minority sexual orientation.

Mr. Jones: In that case, Mr. Smith, I find you extremely attractive.
7.14.2005 4:11pm
lucia (mail) (www):
Rug says: Once we start protecting a class of people on behavior, (regardless of the cause of said behavior)then there is no class of behavior that could reasonably be denied similar protections.

Start? Aren't both marital status and religious practice behaviors? Don't we protect many types of discrimination based on religious practice and marital status? Can't people change outward displays of religion or marital status at least as easily as changing sexual orientation? Haven't people concealed their religion or claimed false religious affiliation to gain advantage or avoid harm?

"Once we start protecting a class of people on behavior other than religious practice, marital status or a number of other behaviors we currently protect.....

But, we are going off in the direction of providing our own arguments rather than answering the question Prof. Volokh asked.

Still, the arguments that are appearing here in comments do answer his question: Yes, some people arguing against legalization of ssm do suggest that if we legalize same sex marriage, that will be a slippery slope to banning other forms of discrimination, and that we should continue to ban ssm in order to protect people's right to discriminate against homosexuals in other ways.
7.14.2005 5:06pm
Goober (mail):
See what you've started, Prof. Volokh?

Frankly, I fail to see the logic. Congress isn't required to pass legislation like the Civil Rights Act, so absent an independent constitutional failure, there's no reason for courts to interpret the legislative content of Title VII as tracking the constitutional analysis other than a sort of judicial shortcut. If the Court interprets Equal Protection as protecting homosexuals, they might interpret Title VII as doing the same, but that's only a heuristic, namely that the court will assume Congress intended Title VII to protect homosexuals in the absence of evidence to the contrary. Somehow I suspect that Congress would quickly supply such evidence, but if they didn't, then you wouldn't have an argument about what the courts did, you'd have an argument about what the political branches acquiesced in.

In short, the content of statutory laws isn't necessarily the content of constitutional law other than by a judicial serendipity; in fact, it almost never is. Sorry this isn't directly responsive to your request for others making this argument, but I fear you're going to find few others falling into what is, frankly, a solecism.
7.14.2005 6:10pm
Bruce Hayden (mail):
I think a couple of posters above have really found the problem here - that sexual orientation is really at some level about behavior, which can be changed. No, I am not suggesting that gays go straight, but just the opposite, as dweeb pointed out in his last comment - that if you find a situation where there is, for example, affirmative action in favor of gays, then a straight merely has to assert being gay, or, at worst, participate in gay sex once or twice. For some, this may not be that onerous, esp. as the dividing line between straight, bisexual, and gay women does not appear as vivid as the comparable line between men. And, indeed, I have known women who got drunk and ended up in a lesbian situation, and didn't find the sexual side that much different than what they sometimes did with men.

In short, in determining whether sexual orientation is a factor in a claim of discrimination, you have to first determine whether or not the issue exists in the first place, and there, because sexual orientation is hard, if not impossible to test, you are left with self-identification. But self-identification lends itself to falsification, esp. when there is a lot of money, etc. involved.

I should note that one example of the problem with self-identification is that of Ward Churchill, who self-identified himself as native-American in order to get preferential treatment for hiring, retention, and tenure at the University of Colorado - and there is some evidence that he is not, in fact, native-American. At least in his case, it is possible to go to tribal records for verification. But in the case of sexual orientation, even that would be unavailable.
7.14.2005 10:38pm
Bruce Hayden (mail):
Continuing with some further thoughts on the problems with discrimination based on sexual orientation.

Currently, HR has enough problems with firing or discipining people who turn around and claim discrimination on the basis of sex, race, age, disability, etc. Indeed, I made sure at my last couple of employers that HR knew (indirectly - due to the drug question) that I was narcoleptic, and thus arguably subject to the ADA.

So, if we throw sexual orientation into the mix, it gets a lot worse, because of the self-identification problem. Someone gets fired, and asserts that they were fired for their sexual orientation. Sure they have a girlfriend or a wife, but they claim bisexuality, and that they hide it from their mate, etc., as many do. How do you prove them wrong? You can't. So, you are left proving that the firing was for cause, and not through discrimination. But that gets hard if some of the employees are either somewhat homophobic, or even deeply religious.

Add to this the hostile workplace problem. All you need to have is someone who is either homophobic or a fundamentalist Christain, and that could be considered a hostile workplace for someone claiming homosexuality or bisexuality - and that would be even harder to disprove.
7.14.2005 10:55pm
Craig234 (mail):
Homosexuality is not about behavior, it's about the characteristic people have, and about equal rights.

Rub, it's simply an issue that it is *unjustified* discrimination to treat the people who are gay worse.

Denying them the equal right to marry the person they love, just as heterosexuals love, makes them second-class citizens.

You ask for the right for society to limit marriage to where it's beneficial to society; you can't, however, show why gays marrying do not provide equal benefit to society as some heterosexual couples - say, two 70 year olds - who marry. You can show why marrying a six year old child, rationally, does not deserve protection.

Others are equating the *equal* rights for gays with affirmative action, extra rights, which I didn't see raised.

The problem is that too many people are ignorant of the nature of homosexuality - and bigotry runs rampant.
7.15.2005 3:41am
Rub:
This is a very interesting thread, I especially loved the comment from Goober:
In short, the content of statutory laws isn't necessarily the content of constitutional law other than by a judicial serendipity; in fact, it almost never is.
7.15.2005 12:35pm
Rub:
Craig, It is obvious that you have frimly held beliefs about the origins of homosexual behavior. I think it is irrelevant to the discussion, it is difference of opinion we have. I think that there is no constitutional or legal authority for a court to establish your desired outcome. That is why I said it should be left to the democratic process. If one believes there should be change in the status quo, go convince the electorate!
7.15.2005 12:40pm
Challenge:
"In short, the content of statutory laws isn't necessarily the content of constitutional law other than by a judicial serendipity; in fact, it almost never is. Sorry this isn't directly responsive to your request for others making this argument, but I fear you're going to find few others falling into what is, frankly, a solecism."

You don't understand the argument. Under Eugene's hypothetical the Court does not decide to protect homosexuals, it decides denial of gay marriage is SEX (not sexual orientation!) discrimination. Given this determination, how would the Court continue to treat the same situation, except with regards to private entities, as NOT gender discrimination? Why under Constitutional law would it be gender discrimination and under statutory law sexual orientation discrimination?
7.15.2005 4:10pm
Craig234 (mail):
Rub,

Craig, It is obvious that you have frimly held beliefs about the origins of homosexual behavior. I think it is irrelevant to the discussion, it is difference of opinion we have. I think that there is no constitutional or legal authority for a court to establish your desired outcome. That is why I said it should be left to the democratic process. If one believes there should be change in the status quo, go convince the electorate!

I don't think it's unreasonable for the burden of proof to lie with those who want to deny equal protection under the law to a group to prove the justification, and I don't see the justification in the trials so far.
7.16.2005 5:36am
Toby:
As an employee of a large state university, I have an awful vision of exactly how any gender orientation anti-discrimination rules would be enforced. Here are two scenarios:

1) The initial employment application would make inquiry about the matter to ensure that hiring results were "appropriate." Over time, just as the race-based check-lists have grown, there would be a multiplication of results. There would be much debate over how to properly handle some classifications in ways that have occassionally occurred in other areas. (For a parallel, think "Black Female and Handicapped -- hire her quickly as we get three times the credit"). There would be much debate. Does S&M, with associated bruises which may be distasteful in a customer service scenario demand as much protection as same sex orientation? Many tiresome papers would be written bureaucratic format until at last, sex is so boring that non one does it anymore.

2) Because things change, people come out, messy divorces happen, …, HR departments would come up with a process for determining "Orientational Diversity". This would probably involve an annual certification survey that must be completed by each line supervisor. As no one likes to complete HR paper work, this would soon be compressed by practical concerns into part of the Annual Evaluation. There would be training required on the appropriate ways to ask these questions as part of the evaluation. Many supervisors would ignore these; "So what are you porking nowadays"; lawsuits would ensue. Some employee would be pressured to pump the diversity numbers "Ah, c'mon, we've didn't hire any of the Hispanic applicants this year, so I need some diversity". These numbers would be collected, tabulated, and solemnly analyzed each year.

It is unclear that these scenarios are an improvement on today's practice.
7.16.2005 4:02pm