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How Many People Don't Object to Same-Sex Marriage But Oppose Bans on Private Sexual Orientation Discrimination?

A month ago I wrote:

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.

I then asked people for examples of this argument. This is relevant to a law review article I'm writing about the possible slippery slope arguments against recognizing same-sex marriage.

Some people responded that this was all moot, because (1) many more people already support bans on sexual orientation discrimination in housing and employment than support same-sex marriage, and (2) those who oppose the bans on sexual orientation discrimination also oppose same-sex marriage. As one commenter particularly colorfully put it,

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.

I gave libertarians as an example — I could likewise imagine some pro-business voters who likewise think that same-sex marriage is a good idea but who don't want yet another antidiscrimination law that will burden employers and landlords. But still this made me think: What if indeed there are virtually no people who fit my category? If so, the "vote against same-sex marriage, even if you might support it or at least not oppose it on its own merits, because it might bring about broader antidiscrimination laws" would be pointless.

Fortunately, it turns out that there's actually some data, albeit about 5 years old, on the subject. In 2000, the Harris organization ran a poll that asked about both issues, and thanks to them, Joe Doherty at UCLA Law School's Empirical Research Group, and Amy Atchison at the reference library, I've gotten an analysis of the results. Here's the data, with a little bit of oversimplification and rounding:

Total respondents: 1010

Favor bans on sexual orientation discrimination

Don't know what they think about bans on sexual orientation discrimination

Oppose bans on sexual orientation discrimination

Refused to answer about bans on sexual orientation discrimination

Approve of same-sex marriage

125

1

29

0

Don't feel strongly about same-sex marriage

191

10

61

7

Don't know what they think about same-sex marriage

8

2

5

0

Disapprove of same-sex marriage

255

44

228

29

Refused to answer about same-sex marriage

4

2

1

8

So as of 2000, only about 3% (give or take the usual margin of error) of respondents approved of same-sex marriage (a decent proxy, I expect, for supporting legal recognition same-sex marriage) but opposed bans on sexual orientation discrimination. However, 9% to 10% of respondents were open to same-sex marriage — i.e., approved, didn't feel strongly, or didn't know what they thought — but opposed bans on sexual orientation discrimination.

This 9-10% group is the group that might be moved by a slippery slope argument. It's not trivial, given that even small groups can be swing votes when opinion is near what it takes to get a law enacted, which it may well be in some states as to antidiscrimination laws. The percentage may be higher still for particular antidiscrimination laws, such as laws that apply to private groups' membership decisions (assuming that Boy Scouts v. Dale, a 5-4 decision, is reversed, or assuming it's held to be inapplicable, for instance if the laws are limited to groups that get certainly government benefits).

But the 9-10% number does suggest that this won't likely be a huge group — and therefore that the slippery slope risk (i.e., the risk that recognizing same-sex marriage will help bring about the enactment of bans on sexual orientation discrimination), while not nil, is likely not very high.

(Again, note oversimplifications: Among other things, it's possible that recognition of same-sex marriage might increase the intensity with which those who already back broader antidiscrimination laws support them; this just doesn't seem tremendously likely to me. And of course, keep in mind the inherent limitations of all survey data.)

Steve:
Your logic is working backwards. We see from these numbers that people oppose gay marriage by a 2-1 margin, and yet they favor bans on sexual orientation discrimination by nearly the same 2-1 margin. It seems obvious, given those facts, that the issue of a ban on discrimination will come up on the legislative agenda long before a bill allowing same-sex marriage.

In other words, you are attempting to construct a "slippery slope" argument that says, don't do the radical thing (allow gay marriage) because it might lead to a relatively noncontroversial thing (banning employment discrimination). The more plausible argument would be directed towards the 25% of the respondents who would be inclined to accept the claim: "don't ban sexual orientation discrimination, it's bound to lead to gay marriage."
8.15.2005 9:33pm
Noah Snyder (mail):
Wow, those are some interesting numbers. I'm surprised, I wouldn't have guessed that'd be as high as 9-10%

I'd also venture to guess that over the past few years as support for equal marriage rights have increased some of those 9-10% have joined the 3% and the data is even more in favor of your point than it was before.

Great research.
8.15.2005 9:37pm
BigBob:
I have to agree with Steve that there's something backwards here. Though libertarians and maybe some other people aren't big on antidiscrimination law generally, most people don't care if the government restricts employers and landlords from firing people or kicking them out of their homes for reasons like sexual orientation. States started enacting laws prohibiting sexual orientation discrimination well before marriage was an issue. There are now about 16 states with antidiscrimination laws that include sexual orientation, and the marriage battle hasn't slowed the trend (2 of the states added the protections in 2005). It's only when groups perceived as genuinely "private" (e.g. Boy Scouts) get involved that attitudes change. But those groups have both Boy Scouts v. Dale and public opinion on their side, and gay marriage won't change that.

Also, public support for antidiscrimination laws hasn't slipped, despite the uproar over gay marriage.

None of this should be surprising, because it happened the same way with race, no? People warmed up to antidiscriminatoin law and robust equal protection doctrine well before they embraced interracial marriage....
8.15.2005 10:20pm
Scott Scheule (mail) (www):
With all due respect, that comment is pathetically out of date. Nowadays, our numbers are close to 250.
8.15.2005 11:04pm
DK:
I'm going to go out on a limb here, and state that I am in this group of people open to same-sex marriage but opposed to some (not all) bans on private discrimination.

The main reason is that I am an Episcopalian, and like most Episcopalians now, I support inclusion of gays, and my church has a gay priest. I think gay marriage and acceptance of gays is just great and I strongly favor them. However, as an Episcopalian, I have also seen many ferocious debates over the moral normalization of homosexuality. There are a lot of people in this country who are just not ready to accept gays for religious reasons, and their feelings run very deep. For many people, this issue is a proxy for the much larger issues of biblical inerrancy and of commitment to historic moral codes, and it is a hotly debated issue among liberal denominations like the Episcopal and Lutheran Churches, not just on the right-wing fringe.

I disagree with those people, but, I do not want to force them to comply with society's new gay-friendly consensus, and I am not convinced that the 1st amendment would allow us to force them to comply. There are three reasons I feel this way:
1. The 1st amendment generally prohibits the government from deciding which religious views are legitimate, in this case, as opposed to covers for homophobia. I think it is important to preserve the principle of not having judges decide whether Tom Cruise, Jerry Falwell, etc. have legitimate religious beliefs.
2. Society is going to change towards the acceptance of gays and the elimination of discrimination anyway. Community and social pressure, including boycotts, are effective and do not raise 1st amendment concerns. And let's be honest -- young people support gay rights overwhelmingly, so the opposition to full equality is going to die out over time.
3. Look at what has happened to abortion, the 10 commandments and other culture-war issues -- forceful government action, especially Supreme Court action, has usually inflamed the issue and deepened social divisions. It is possible that government action to stop all discrimination would only strengthen an opposition that is on its way to dying out.

Note that none of my reasons would support vote what Eugene refers to as "the argument gainst same-sex marriage, even if you might support it or at least not oppose it on its own merits, because it might bring about broader antidiscrimination laws". Instead, I see them as arguments to avoid any federal action and to allow states to experiment -- gay marriages in Vermont are not as direct a threat to religious believers in Alabama as federal antidiscrimination laws would be.
8.16.2005 9:52am
Daniel Chapman (mail):
Good post, DK
8.16.2005 10:06am
Richard Bellamy (mail):
For those of us in New Jersey (from which the Boy Scout decision was overturned), the entire argument is backwards. We already HAVE antidiscrimination laws against homosexuals (called, not surprisingly, the "Law Against Discrimination"). One of the arguments against the LAD, of course, was that it might lead down the slippery slope to gay marriage.

So, from here, the argument only works if you believe in slipping uphill.
8.16.2005 10:10am
BigBob:
DK-
Great post, but I don't think I agree. While I favor strong First Amendment protections, I just don't see why they should protect commercial entitites and landlords from firing people and kicking them out of their homes. How are your rights infringed when you can't dictate the sexual orientation of the the workers at your factory? The bankers at your investment? The busboys at your restaurant? They need to be straight? I don't see the expressive association there. And neither do most Americans. That's why we accept antidiscrimination law (And when there IS genuine expressive association, Boy Scouts v. Dale protects you.)

Plus, how would you apply your arguments to other contexts? What about people who have a genuine "principled" opposition to women working outside of the home? To interracial marriage? To co-educational or mixed-race schooling? To public displays of a particular religious belief, no matter how subtle? Must we wait until all society has rejected discrimination before we can prohibit it, lest we provoke backlash? Doesn't make much sense to me.

Notably, your counterexamples -- abortion, ten commandments -- involved constitutional issues determined by an unelected judiciary, and did not involve antidiscrim law. Might there be a difference between the two things? What about the civil rights act of 1964? That was a huge success, despite widespread opposition.
8.16.2005 10:26am
Hans Bader (mail):
People who support same-sex marriage but oppose laws banning private-sector sexual-orientation discrimination may be rare, but they tend to be well-educated, wealthy, and often campaign donors. So Eugene's point is well-taken.

More people in my family support same-sex marriage than support giving the plaintiff's bar one more reason to sue private employers for practices that liberal judges will deem discriminatory against gays and lesbians.

Remember, the way the courts have interpreted antidiscrimination law, an employer may be held liable for "disparate impact" even if it treats a minority group the same as non-minorities, and may be held liable if its employees' speech offends minorities (under a hostile-environment theory). So if a gay employee's co-workers criticize gay marriage, then that may contribute to a potential lawsuit against the employer for sexual-orientation "harassment." (To me, that raises free speech problems, but most courts seem not to be overly concerned with the tension between free speech and "harassment" law).

By contrast, gay marriage is really not so radical (as long as it is enacted by the legislature, rather than imposed by judges). Regardless of whether you like homosexuality or not, isn't monogamy a good thing? If monogamy is good for straights, why not for gays, too? Promoting monogamy among gay men might reduce the spiraling cost of AIDS.
8.16.2005 10:56am
BigBob:
Hans, the federal legislation to ban sexual orientation discrimination (ENDA) specifically prohibits disparate impact claims. This is the only workplace antidiscrimination bill that LGBT civil rights groups are pushing for at a national level.
8.16.2005 11:05am
DK:
Thanks, BigBob and Daniel, for your compliments and further discussion.

Note that I did not say I opposed all antidiscrimination legislation protecting gays, only some of it, and I supported the use of social pressure and boycotts to stop discrimination. The big commercial entities, factories, and bankers you mention usually have non-discrimination policies and those that don't can be targeted by social pressure campaigns.

IMHO, the reason gay rights today is different from civil rights in 1964 is that racial discrimination was much more entrenched (often with local government support), requiring aggressive federal efforts to root it out. Discrimination against gays, however, is already on its way out, and businesses are recruiting and marketing to gays to a degree that racial minorities did not receive until the 70's or 80's.

In other words, my argument is a tactical one based on my perception of the political momentum and the facts. I would have to change my conclusions if I learned different facts -- such as evidence of high rates of unemployment or homelessness among gays. And in the other contexts you mention, other facts apply, including the high rates of unemployment and disparate pay among racial minorities.

Note, though, that I do support same-sex marriage; it should be clear that my arguments support interracial marriage, as well as a lot of things that might offend principled opposition. IMHO, the existence of strong, religious or principled public opposition is not a reason to deny two people the opportunity to marry each other, although it is a reason to be careful with your political strategies.
8.16.2005 12:07pm
JoeSlater (mail):
The comments from the folks who are OK with gay marriage but not employment discrimination law are interesting in articulating a minority view that isn't often heard.

I'll chime in with the same data that I did in the original thread. This stuff ain't hypothetical. There are already laws barring discrimination in employment against gays in 12 states and many dozens of prominent cities, such that by estimates these laws now cover 1/3 of U.S. workers. Not only does this contrast starkly with the political fortunes of gay marriage, but also there hasn't been much of an uproar: one hears few claims in the "oh my god, the fabric of society is being destroyed by this" re employment discrimination that we've seen re gay marriage.

This isn't shocking. In passing laws eliminating race discrimination, rules applying in some spheres (schools) were more controversial than in others (transportation). There is some good scholarship on this, and I expect there will be some good scholarship on why more people (posters in this thread to the contrary notwithstanding) get upset about gay marriage than get upset about employment discrimination laws protecting gays.
8.16.2005 12:31pm
BigBob:
DK - you make good points.
8.16.2005 12:43pm
Alexandra von Maltzan (mail) (www):
I am quite amazed that in the 21st Century we are still talking about whether or not we accept gays. Whether we do or not is entirely irrelevant as they form an integral part of our global society, and like it or not, approve of them or not we need to accept them as a fact of life. Having said that, allowing gays to marry, I have to agree with Hans and DK on this, would give way to a monogamous gay society, which will always be to our benefit whether for health reasons or otherwise. A more stable and content demographic of what believe it or not forms 10% of our global population, will eventually have to be accepted by society no matter what.
8.16.2005 1:12pm
Clayton E. Cramer (mail) (www):

Having said that, allowing gays to marry, I have to agree with Hans and DK on this, would give way to a monogamous gay society, which will always be to our benefit whether for health reasons or otherwise. A more stable and content demographic of what believe it or not forms 10% of our global population, will eventually have to be accepted by society no matter what.
1. There's no reason to think that marriage is going to make homosexual men suddenly monogamous. Why would it? Does it make heterosexual men monogamous? Of course not.

2. The 10% figure has been thoroughly discredited for at least a decade. Homosexual and bisexual men are about 3-4.5% of the adult male population; homosexual and bisexual women are about 1% of the adult female population.

A lot of people find the sexual orientation/race analogy very powerful. I don't, for the following reasons:

1. Bans on interracial marriage are relatively recent, appearing in Virginia and Maryland at the close of the 17th century. They were never universal in the U.S., and were already on the decline (largely because of legislative action) when the Loving decision struck down Virginia's law. Homosexual marriage has never been sanctioned in the history of European civilization--or to my knowledge, any other.

2. Unlike race, homosexuality isn't obvious (unless you choose to make it so with the silly affectations). Laws banning racial discrimination in public accommodations and employment are vastly easier to justify simply because it is so easy for someone to discriminate based on race--most of the time, the only way that someone is going to know that you are homosexual is if you go out of your way to let them know. If only blacks had enjoyed the option of having their race be invisible!

3. The Virginia law struck down in Loving did not simply refuse to recognize the Lovings marriage; they were threatened with prison if they did not immediately leave Virginia, and stay out for 25 years. No one is proposing to lock up homosexuals for getting married in Canada and then returning.
8.16.2005 1:39pm
Medis:
Clayton,

All three of those distinctions seem rather inconsequential to me, insofar as they really do not address the merits of the issue (particularly if the issue if a matter of preferred legislative policy, and not some legal claim). (2) in particular strikes me as exceedingly odd, insofar as it would obviously apply to something like religion as well.
8.16.2005 1:59pm
Carol Anne:
I defy any of you to identify homosexuals who choose to engage in mainstream behavior. Whether I'm gay or not is not apparent to my clientele, to the community I serve (as an appointed Planning Commissiner), or my neighbors. The two women next door, and the two women in my household, may or may not be gay...perhaps we're just sharing a house in these days of inflated house prices. How is anyone to know, barring examining their private behavior?

Yes, I'll acknowledge there are some flagrantly-evident gay men and women, and anti-gay groups are fond of showing clips of the more dramatic presentations in Gay Parades. But, for the most part, you and I don't know whether a same-sex pairing of adults is gay or not. Is it "homosexual" for two people of the same gender to share a household for many years?

So, where's the basis for discrimination that isn't rooted in behavior (e.g., language, dress) that are inimical to the decorum of of the business establishment? And, where's the basis for deciding to deny housing that isn't rooted in observable behavior?

Exceptions to anti-discrimination based on sexual orientation--especially when the sexual behaviors are engaged in only in private--is just a loophole discriminators can use when they don't like what they see. All I have to do is label you "fag," and I can fire you, or deny housing at will?

The notion of "equal protection under the law" was denied people on the basis of skin color for a long time...and it was evident that their skin color was different from the perpetrator. However, in the case of "gay" or "lesbian," (or even "bisexaul" or "transgendered"), how does the law deal with the perpetrator who simply assumes they know the person's sexual preferences?

Finally, I suspect that the published statistics about the fraction of the population who are homosexual are way low. There are significant fractions of the gay population who refuse to publicly (or privately, in surveys) declare themselves. In California, we have a legal right to register a same-sex relationship; most people don't register, because (they tell me) they fear that list might be used in the future by some "American Taliban" elected or appointed official who would use that registration list to disadvantage those people in some way.
8.16.2005 2:07pm
BigBob:
"Unlike race, homosexuality isn't obvious (unless you choose to make it so with the silly affectations). Laws banning racial discrimination in public accommodations and employment are vastly easier to justify . . . .If only blacks had enjoyed the option of having their race be invisible! "

This is a truly amazing comment. It is essentially the equivalent of saying "We should protect black people because they can't help being black." How demeaning!! (Some might even use a stronger word than demeaning.)

Even if black people COULD hide thier race (and some light-skinned blacks can), it wouldn't be OK to discriminate against "openly black" people, would it? Nor should it be OK to discriminate against people who refuse to hide their religion, or their disability, or their sexual orientation, or their gender-non-conforming traits. We don't protect people from discrimination simply because it's not their fault that they're black or gay or Jewish, but because it shouldn't MATTER if they are black or gay or Jewish, at least not for purposes of employment or certain (truly) public accomodations.
8.16.2005 2:35pm
JoeSlater (mail):
As to the behavior of gays or lesbians not being immediately apparent, that may often be true of *hiring* decisions, but there are also fears of discrimination (firing, denial of promotions or plum assignments, etc.) against *current* employees. And even for the non "stereotypically acting" gays and lesbians, consider how difficult it is to stay closeted in a workplace over time. Think about where you work. If you've been there a while, you probably know the spouses or significant others of most of your colleagues. People gossip about their romantic relationships and those of others around the water cooler or in other social moments at the office. If you're a gay or lesbian fearful of discrimination, you will have put some effort and creativity into being closeted even if you're single ("Hey Bob, isn't Jane hot?" "Um, yeah, she is"). And if you're in a relationship, you'll have to put even more effort into hiding it.

To relate back to the original point, I guess more people think that the above scenario is unfair and that the benefits of prohibiting discrimination by employers outweigh costs than feel the same way about same sex marriage.
8.16.2005 2:43pm
Carol Anne:
To "BigBob:

Your counterfeit argument in response to Clayton E. Cramer, which attempts to inject words into his mouth is unworthy of any sentient adult. You can distort what ever he said through your own myopic filters, but that doesn't make it meaningful.

To Joe Slater:

You write "...consider how difficult it is to stay closeted in a workplace over time..." It seems to me it's not all that difficult at all. Just look at the public figures like Hollywood celebrities who've done it for a lifetime (or nearly so). If people under such scrutiny by papparazzi and the press can manage it, why not "regular folks" in civil life? It was only when a senior executive of Ford "came out," that anybody suspected (as reported by the press of peer executives in the firm).

My main concern is that our current cultural (and military) climate forces a fraction of our law-abiding citizens into behaving in a way that is inimical to their own authenticity in order to benefit from what hetrosexuals simply take for granted. Is that "equal protection?" I think not.
8.16.2005 3:20pm
Steve:
It seems like an interesting legal problem to analyze what happens when a straight person is denied employment or housing based upon a mistaken belief that he is gay. There must be precedents for this in some other area.
8.16.2005 3:25pm
BigBob:
Carol Ann,

Wow! More amazing comments. If anybody is engaging in distorsion and unjustified attacks, I think it might be you in this case.

Can you point to where I "inject words" into Clayton's mouth? I don't. On the contrary, I quote him directly!!

Then I say one of his comments was "essential the equivalent" of something very offensive. And I stand by that. He DOES suggest, quite clearly, that it would be a good thing if blacks could hide their race. Notably, you have not refuted that.

If somebody makes an argument that is demeaning or offensive, we should be able to point that out, and explain why we find it offensive. My post did so, and it was perfectly civil, albeit forceful. It attacked Clayton's argument, not Clayton.

Your nasty, vicious response is unjustified and unhelpful (not to mention unresponsive to the point I made). Please see Volokh's guidelines below regarding civility and personal insults.
8.16.2005 3:36pm
BigBob:
To fix/clarify my last post, what I take issue with is not really the argument that it would be a good thing if blacks could hide their race. I take issue with the argument that they would be any less entitled to antidiscrmination protections if they could hide their race, as well as the argument that we should protect them only because they can't help but be black. And yes, I know that this is not how Clayton phrased his argument, but I don't see a meaningful difference.
8.16.2005 3:49pm
Medis:
In BigBob's defense, the original argument strikes me as so odd that I find it difficult to restate in a charitable fashion.
8.16.2005 4:00pm
Carol Anne:
BigBob wrote: "Can you point to where I "inject words" into Clayton's mouth? I don't. "

Then, in a subsequent post BigBog wrote: "And yes, I know that this is not how Clayton phrased his argument, but I don't see a meaningful difference."

Can you see the contradiction in your statements? I think there is some "meaningful difference."

I don't necessarily agree with Clayton's remarks, either, but I do think your characterization to suit your argument is, in fact, "putting works in his mouth."

Let's just abandon this meta-discussion about the discussion. We agree to disagree.
8.16.2005 4:18pm
Carol Anne:
(Oops! sorry BigBob for the "fat fingers" typo of your handle, above.)
8.16.2005 4:21pm
BigBob:
No, I don't see the contradiction actually. In fact, the second sentence you quote proves that I go out of my way not to put words in people's mouths. Instead, I acknowledge when I've engaged in some interpretation or re-phrasing.

I'm happy to end the meta-discussion.

Cheers
8.16.2005 4:35pm
Clayton E. Cramer (mail) (www):
Carol Anne writes: <blockquote>
I defy any of you to identify homosexuals who choose to engage in mainstream behavior. Whether I'm gay or not is not apparent to my clientele, to the community I serve (as an appointed Planning Commissiner), or my neighbors. The two women next door, and the two women in my household, may or may not be gay...perhaps we're just sharing a house in these days of inflated house prices. How is anyone to know, barring examining their private behavior?
</blockquote>Exactly my point. The major beneficiaries of sexual orientation antidiscrimination laws are going to be those who engage in stereotyped behavior, or make a point of letting people know about their sexual orientation. Over the years, I've worked with a number of homosexuals. Most were discreet about it. They weren't closeted, but they knew that not everyone was going to be thrilled about it. On the other hand, some of the homosexuals that I worked with were not just indiscreet; they engaged in offensive stereotypes (the woman wearing a chain as a belt, smoking big fat cigars, pot belly, bowling bumper stickers--an insulting parody of a blue collar man), just to make sure that you could not possibly miss it.

I've worked with people who were almost as offensive about their religious beliefs--the sorts who were constantly using the break room as a chance to let you know that they were born-again Christians, and promoting their belief system. Even though I shared their beliefs, I found their behavior offensive.

There's a fuzzy line between discreet and offensive, between polite and boorish. Antidiscrimination laws pretty well destroy that line, and turn almost any firing of an offensive and boorish member of a protected group into a lawsuit.
8.16.2005 5:05pm
Clayton E. Cramer (mail) (www):
Medis writes:

All three of those distinctions seem rather inconsequential to me, insofar as they really do not address the merits of the issue (particularly if the issue if a matter of preferred legislative policy, and not some legal claim). (2) in particular strikes me as exceedingly odd, insofar as it would obviously apply to something like religion as well.
I've never found the argument for antidiscrimination laws with respect to religion very persuasive. I will say that such laws should apply to all religions, not just religious minorities.

Economists like Thomas Sowell have long pointed out that antidiscrimination laws with respect to the private sector are hard to justify from an economic standpoint. In a competitive market, if employer A discriminates against members of group X, and that discrimination is irrational, the net effect will be to reduce the hiring pool for employer A, driving up costs—while employers B and C will benefit from a larger potential employee pool. Irrational discrimination puts employer A at a disadvantage.

It is true that in non-competitive industries (government, government granted monopolies) there might be a case for antidiscrimination laws, because the lack of competition allows the employer to engage in irrational discrimination, and there is no cost to it. Sowell points out that phone companies, a regulated monopoly, were among the worst offenders in discriminating against blacks for many years—and among the most vigorous proponents of affirmative action a few decades later.

If there were some evidence of widespread discrimination against homosexuals in employment, as there was against blacks, I suppose that you might have an argument—but then you would have to ask why this discrimination is so widespread in competitive markets, if it is truly irrational.
8.16.2005 5:18pm
JoeSlater (mail):
Carol Anne:

I am genuinely confused about your point. You write:

To Joe Slater:

You write "...consider how difficult it is to stay closeted in a workplace over time..." It seems to me it's not all that difficult at all. Just look at the public figures like Hollywood celebrities who've done it for a lifetime (or nearly so). If people under such scrutiny by papparazzi and the press can manage it, why not "regular folks" in civil life? It was only when a senior executive of Ford "came out," that anybody suspected (as reported by the press of peer executives in the firm).

My main concern is that our current cultural (and military) climate forces a fraction of our law-abiding citizens into behaving in a way that is inimical to their own authenticity in order to benefit from what hetrosexuals simply take for granted. Is that "equal protection?" I think not.

Here's my response. My concern, I think, is the same as yours: people should not be forced into acting in a way that is inimical to their own authenticity, i.e., they shouldn't be forced to hide their homosexuality.

It is this "being forced into acting" that I meant when I said it was difficult, and you take me to task for that description. That's what I find puzzling. Sure, some people have successfully remained closeted at their work -- I know some. But that fact doesn't mean it's not difficult: they can't discuss their private lives, have to hide their lovers, pretend to be attracted to people or otherwise make dishonest small talk about sex and romance. That's difficult emotionally and sometimes logistically. That's all I meant.
8.16.2005 5:46pm
Clayton E. Cramer (mail) (www):
Let me give you an example of the hazard of antidiscrimination laws. Many years ago, I worked for a startup in California. At some point early on, we hired a fellow I'll call M.N. (now dead) M.N. was a technical writer--and part of the last generation of technical writers who had used typewriters to produce manuals. M.N. had some difficulty adjusting to the modern age, and at one point, when deadlines were looming on getting a manual out the door, and he was having some trouble doing a cut and paste--he did a real cut and paste, with scissors and glue. This was in the late 1980s, not the 1960s.

His performance was only so-so, but because he was a nice guy, his bosses kept giving him overly nice performance reviews. Perhaps because of age, his performance kept declining--and eventually, the gap between, "M.N. is a nice person, let's not fire him" performance reviews and his actual performance reached a point where they had to let him go.

So M.N. filed suit, claiming age discrimination. Was this the case? Even a co-worker who was a flaming feminist liberal agreed with me that this was not the case--he just wasn't doing a very good job anymore. But because his supervisor had been too nice on a couple of years' worth of performance reviews, his lawyer argued that obviously his performance hadn't been a problem in the past, and so the only possibility was age discrimination. The company settled out of court.

As I understand it, the normal burden of proof rules apply to discrimination suits. Neither side goes into the courtroom with the deck stacked against them (as is the case, quite rightly, in a criminal case). But for some odd reason, when it comes to discrimination suits, the whole system seems to work on the principle that if you are a member of a protected minority, the burden of proof is on the employer to prove innocence. Or at least employers behave that way.

When I mentioned earlier about fuzzy lines separating boorish from discreet behavior, think about the guy who thinks it is appropriate to come to work some days dressed as Carmen Miranda, and some days as the construction worker from The Village People. If you suggest that such attire is not appropriate for his job as a customer services representative, you have just put the first nail in the coffin of your employer's sexual orientation discrimination suit. "But this is who I am! This is part of my culture!" That a lot of gay men don't do this isn't going to help much, I fear.
8.16.2005 5:51pm
JoeSlater (mail):
Clayton:

The argument that anti-discrimination laws are unnecessary because the market will sort it out, efficient employers will hire the best person regardless was made better by Richard Epstein than T. Sowell. But it flately contradicted by almost all employment history in the U.S. up to Title VII. And that history was of very strict segregation in employment along racial and gender lines -- not just in monopoly industries, but in pretty much all major industries.

This was because, among other things, the racism of the employers, but also on a pure economics 101 level, because even if an employer would abstractly be willing to hire a black into a higher-level job, that employer would have lots of trouble with resentful racist white employees and with racist white customers. One of the advantages of general anti-discrimination laws is that they required most employers to hire qualified blacks, so racist consumers couldn't fix their resentment against one employer to its economic advantage.

Think about it: you run an upscale restaurant in Alabama (or some racist northern city) in the 1950s. Blacks have never been chefs before in your restaurant or in the town. A qualified black chef and a qualified white chef apply -- heck, let's say the black chef is equal in all ways but is better at sauces. You know that, because of prevailing racist attitudes, if you hire the black chef, a bunch of your employees will protest strongly and some might quit, and also a number of your customers won't patronize you anymore. What does the economically rational employer do?
8.16.2005 6:01pm
JoeSlater (mail):
Argh ... "But it is flatly contradicted by ..."
8.16.2005 6:02pm
BigBob:
"When I mentioned earlier about fuzzy lines separating boorish from discreet behavior, think about the guy who thinks it is appropriate to come to work some days dressed as Carmen Miranda, and some days as the construction worker from The Village People"

Huh??? Nobody is talking about a right to dress as the Village People. Unless you truly believe that courts and legislatures and juries are unavoidably incapable of distinguishing between anti-gay/racist/sexist discrimination and discrimination based on flashy attire or counterproductive workplace behavior, then I think you need to take your argument in a new direction.

Lots of people have been demonstrating that civil rights laws can be abused and misapplied. But nobody has shown (or could show) that the abuse is any more prevalent ofr profound than abuses in other areas of law. Normally, our solution is to try to fix the abuses, not repeal legal protections altogether. I don't see why antidiscrimination law is any different.

And please don't respond by telling me about a guy you once heard of who sued when he was fired for wearing a tongue ring, or whatever.

My response to the economic argument is this: Yes, it's irrational. But people routinely engage in irrational behavior that is not in their best interests nor in the interests of society. That's what racism is all about. People are not rational.
8.16.2005 6:10pm
Medis:
Clayton,

If I understand your response, you are now making a general claim that discrimination laws are unwise and unnecessary. You are also making the specific claim that there was racial discrimination in employment, but there is not discrimination against gay people in employment.

The first claim does not, of course, have anything to do with your original claim that discrimination against gay people is somehow distinct from discrimination against people on the basis of their race. The second claim is essentially empirical, so I won't try to answer it definitively here.

But suppose it turned out that for whatever reason, people were willing to sacrifice material wealth (eg, by buying higher-cost products or services from less efficient anti-gay providers) in order to indulge a desire to discriminate against gay people, would that really be "irrational"? Perhaps in the sense that their underlying beliefs may be poorly formed, but not necessarily in the sense that they are acting against their perceived self-interest. And so I don't think you can "prove" that anti-gay discrimination does not exist on the basis of market theories, unless you know for sure that there are no people willing to pay a price to support anti-gay policies.

One final aside: while dressing appropriately for the job at hand, while at work, is a reasonable requirement, do you really want to extend that to a rule against dressing in a way which would ever reveal your personal preferences? Was my wearing a baseball cap from my favorite team, if such a cap is otherwise permitted, necessarily offensive? And is it conforming to a "stereotype" because people like me often wear baseball caps? I really think that people who accuse gay people of flaunting their sexuality are unaware of the uncountable number of ways that all of us reveal our personal preferences in daily life.
8.16.2005 6:18pm
Clayton E. Cramer (mail) (www):
Joe Slater writes:

The argument that anti-discrimination laws are unnecessary because the market will sort it out, efficient employers will hire the best person regardless was made better by Richard Epstein than T. Sowell. But it flately contradicted by almost all employment history in the U.S. up to Title VII. And that history was of very strict segregation in employment along racial and gender lines — not just in monopoly industries, but in pretty much all major industries.
The problem was that racial discrimination had a long history of aggressive government intervention. Take a look at Plessy v. Ferguson—this was not a private company's decision—the state government required private companies to discriminate based on race, and the widespread discrimination in schooling (even to the point of opening a separate law school for blacks) meant that at any given time, the number of qualified blacks was kept very small. You can also make an argument that the willingness of state and local governments in the South to look the other way with respect to lynchings encouraged discrimination by consumers. But you know what? The examples that you are giving involve blacks—whose situation in this country is so dramatically different from that of homosexuals that the analogy just falls apart.

Now, discrimination based on sex was certainly widespread—and reflected a consensus view of the appropriate places of men and women. (Even most women shared that view, for a very long time.) There is not a similar consensus view about homosexuals, and has not been present in my lifetime. Remember: I grew up in the late 1960s, when homosexuality was just something that made you different, not bad.

This was because, among other things, the racism of the employers, but also on a pure economics 101 level, because even if an employer would abstractly be willing to hire a black into a higher-level job, that employer would have lots of trouble with resentful racist white employees and with racist white customers. One of the advantages of general anti-discrimination laws is that they required most employers to hire qualified blacks, so racist consumers couldn't fix their resentment against one employer to its economic advantage.
So you are claiming that there were no private employers willing to hire qualified blacks before these laws were passed? That's a strong claim to make.

Also, the analogy to homosexuality falls down. At least in my lifetime, homosexuals have never been hated or held in contempt in the way that blacks were in the South. Our society hasn't (at least in my lifetime) identified homosexuals at an early age, put them in separate schools, prohibited them from attending college or segregated them into inferior "gay colleges." The only governmental institutions have put homosexuals into an inferior position are the military, and the civilian intelligence agencies. On the other hand, being gay is definitely something that gives you the upper hand if you want to teach.
8.16.2005 6:18pm
Clayton E. Cramer (mail) (www):
Medis asks:

If I understand your response, you are now making a general claim that discrimination laws are unwise and unnecessary. You are also making the specific claim that there was racial discrimination in employment, but there is not discrimination against gay people in employment.
I'm making the claim that ordinarily there would be no need for antidiscrimination laws in competitive employment—blacks were in a rather peculiar situation because state governments had strongly encouraged (even required) discrimination against blacks in public accommodations, and put them at an enormous competitive disadvantage with respect to education. Neither of these is true with respect to homosexuals (with the exception of those jobs where military or intelligence service gives you a leg up).

I do not doubt that there is some discrimination against gay people in employment. I've seen ads that specified a sexual orientation preference—but those were expressing a preference for gay/bi employees for a graphic artist position. I will assume that there are employers who would discriminate the other direction as well. But what large employers discriminate against homosexuals today? Corporate America, because it is so strongly liberal in the higher echelons, goes out of its way to promote homosexual hiring. One company that I worked for was run by a very conservative Catholic—and even they had a domestic partners policy. I'm sure that you can find examples, but the analogy to the situation for blacks falls apart—there is no comparison.
8.16.2005 6:25pm
JoeSlater (mail):
Regarding Clayon's example, I can't speak to the given situation because I wasn't there. But the idea that employment discrimination cases are easy to win is completely backwards. In fact, as several law review articles have documented, Title VII plaintiffs have pretty much the worst success rate of plaintiffs in all civil litigation. Here's a few stats from those articles.

Title VII plaintiffs must initially file with the EEOC, and only about 15% percent of such claims result in some relief to plaintiffs, a rate generally lower than that for other administrative claims. One study showed that at the pretrial stage, 98% of employment discrimination cases were decided for defendants (compare to a success rate of 66% for defendants in insurance cases). In cases tried before judges, employment discrimination plaintiffs succeeded in 18.7 percent of the cases (compare: plaintiffs in insurance cases won 43.6% of the time and plaintiffs in personal injury cases won 41.8% of the time). Employment discrimination defendants that lose at the trial level do much better on appeal (winning reversal over 43% of the time) than employment discrimination plaintiffs that lose at the trial level (winning reversal on 5.85% of the time, a lower rate than any other category of cases except prisoner habeas corpus cases).

I'm not saying there are no weak employment discrimination cases or cases that should never have been brought. But the system does *not* work as if the burden of proof is on employers. In fact, to the extent the system is broke, it's broke in a way that grossly disfavors plaintiffs.
8.16.2005 6:27pm
Clayton E. Cramer (mail) (www):
Big Bob says:


Huh??? Nobody is talking about a right to dress as the Village People. Unless you truly believe that courts and legislatures and juries are unavoidably incapable of distinguishing between anti-gay/racist/sexist discrimination and discrimination based on flashy attire or counterproductive workplace behavior, then I think you need to take your argument in a new direction.
Tell me how often absurd suits get settled out of court because it's cheaper to write a settlement check for $25,000 than it is to spend $50,000 defending the company--with a small chance that a jury will feel sorry for Carmen Miranda, and decide that $250,000 will make him/her feel better.

Lots of people have been demonstrating that civil rights laws can be abused and misapplied. But nobody has shown (or could show) that the abuse is any more prevalent ofr profound than abuses in other areas of law. Normally, our solution is to try to fix the abuses, not repeal legal protections altogether. I don't see why antidiscrimination law is any different.
For starters, because I don't see the evidence that such laws are needed to protect homosexuals. Yes, I know of cases where homosexuals have been fired for that reason. But you know, there are ways to fire people for reason X that don't involve reason X.

I found my opportunity for advancement at one company blocked by, I think, the fact that I didn't drink. I found that one of my supervisors actually told an interviewee, "Do you drink? I don't trust people that don't drink." (I don't think he knew that when he hired me.)

Another friend worked for a company where managers were just about always soccer players. You wouldn't find that in writing anywhere, and perhaps even those making the decisions didn't realize that being part of the "soccer player" network was influencing promotions. Irrational? Sure, just like refusing to hire someone simply because they are homosexual.

If you like, we can expand the antidiscrimination laws to cover all non-job related matters. That would be fine with me. It would take about one year of every hiring and promotion decision being turned into a lawsuit to make it clear how insane this is.
8.16.2005 6:32pm
Clayton E. Cramer (mail) (www):
Joe Slater says:


Regarding Clayon's example, I can't speak to the given situation because I wasn't there. But the idea that employment discrimination cases are easy to win is completely backwards. In fact, as several law review articles have documented, Title VII plaintiffs have pretty much the worst success rate of plaintiffs in all civil litigation. Here's a few stats from those articles.

Title VII plaintiffs must initially file with the EEOC, and only about 15% percent of such claims result in some relief to plaintiffs, a rate generally lower than that for other administrative claims. One study showed that at the pretrial stage, 98% of employment discrimination cases were decided for defendants (compare to a success rate of 66% for defendants in insurance cases). In cases tried before judges, employment discrimination plaintiffs succeeded in 18.7 percent of the cases (compare: plaintiffs in insurance cases won 43.6% of the time and plaintiffs in personal injury cases won 41.8% of the time). Employment discrimination defendants that lose at the trial level do much better on appeal (winning reversal over 43% of the time) than employment discrimination plaintiffs that lose at the trial level (winning reversal on 5.85% of the time, a lower rate than any other category of cases except prisoner habeas corpus cases).
Very interesting. What you are telling me is that the overwhelming majority of discrimination claims (98%) are found to be unmerited in pretrial hearings, and only a tiny minority of discrimination suits that go to trial (so, 2% of the cases first brought) win (18.7%), and that even then, almost half of those cases lose on appeal. A little math ((1-.98) x .187 x (1-.43)) suggests that about .2% of all initial claims turn out to be winners.

In essence, you are telling me that even the current system produces an enormous amount of legal proceedings, because most of the claims have no merit. And this is an argument for adding yet another category of supposed victims?

I can see why lawyers would have a financial interest in adding more protected classes to discrimination laws so as to keep themselves busy filing suits or defending corporations--but you will forgive me for not finding this a good argument for it.
8.16.2005 6:43pm
JoeSlater (mail):
Clayton:

While I understand that Epstein and maybe Sowell try to rely on the claim that the pervasive racism that permeated all levels of employment discrimination was somehow the fault of the government (the one and only central bad guy in libertarian legal theory, I guess), again, the facts don't support that at all. Your case example, Plessy, wasn't even about employment discrimination. More importantly, no public law caused the steel industry (along with many others) to keep blacks in the worst paid, most dangerous jobs. And to the extent there were laws discriminating against blacks and governments willing to turn a blind eye to lynching, well, who elected those folks? People willing to dine at black-owned posh restaurants? I don't think so. The government reflected attitudes all too popular among the people.

You ask me if I'm saying that "no" employers would hire blacks. My response is to ask you to look back and see how many employers really did hire blacks into the better jobs. Contra Epstein and Sowell, this isn't a theoretical exercise, there's a whole history of actual experience to examine. If you study the history of employment in the U.S., you will find that few employers did hire blacks into better jobs, and that this was true in the overwhelming majority of cases in which government regulation played no discernable role. Again, they did this for reasons that were economically "rational" and for reasons that satisfied their own opinions and prejudices. And it's a better world now that this is illegal.

You also say that the comparison with gay rights isn't good, and I agree (you may be suprised to read) that there are some significant differences. But I'm surprised that you don't acknolwedge the level of dislike/bigotry (you pick) towards gays and lesbians in this society. Also, I don't think the differences are such that they argue against anti-discrimination laws that protect gays and lesbians.
8.16.2005 6:43pm
Choosing Sides 2:
Please provide evidence for the following claims:

"Corporate America ... is so strongly liberal in the higher echelons." (Bush's base is strongly liberal?)

"I grew up in the late 1960s, when homosexuality was just something that made you different, not bad." (Why were so many gays in the closet then?)

"The only governmental institutions have put homosexuals into an inferior position are the military, and the civilian intelligence agencies." (how do you account for marriage, domestic partner benefits, legal inheritance rights, etc.?)

You also seem to focus entirely on hiring/firing which constitutes only a portion of Title VII litigation. Certainly, harassment is a much more pressing issue for gays which you do not address. Homophobia in the workplace is rampant and there are numerous studies to support that fact.
8.16.2005 6:44pm
Medis:
Clayton,

I'm interested in your suggestion that there has been no history of state encouragement of anti-gay discrimination. Lawrence, of course, was not decided so long ago. And as Scalia pointed out back in Romer, while Bowers was still good law, the relevant criminal laws provided grounds for believing that discrimination against gay people must be permissible, and indeed morally required (Scalia was ultimately vindicated in Lawrence on this point, although not in the way that he would choose). And do you really think being gay was never relevant to, say, employment as a public school teacher before the advent of anti-discrimination protection?

Again, though, this is ultimately an empirical question. You are now giving speculative reasons for why there may not be widespread anti-gay discrimination in fact. But in the event that your speculation proves wrong, then I don't yet see how you have shown a relevant distinction between racial and sexual orientation discrimination.
8.16.2005 6:50pm
BigBob:
I'm genuinely sorry you got fired for not drinking, (You really should start.)
8.16.2005 6:50pm
Clayton E. Cramer (mail) (www):
Joe Slater writes:


While I understand that Epstein and maybe Sowell try to rely on the claim that the pervasive racism that permeated all levels of employment discrimination was somehow the fault of the government (the one and only central bad guy in libertarian legal theory, I guess), again, the facts don't support that at all. Your case example, Plessy, wasn't even about employment discrimination. More importantly, no public law caused the steel industry (along with many others) to keep blacks in the worst paid, most dangerous jobs.
Actually, it isn't that government is the "one and only bad guy in libertarian legal theory," but that government is a powerful force in a way that even a majority of the population, acting individually, is not. Government can be a powerful force for good; it can be a powerful force for bad. Think carefully of what happens when you bring in that kind of power on your side--and hope that it doesn't change its mind.

It is true that Plessy wasn't about employment discrimination, but then again, we weren't just discussing employment discrimination, but the entire range of antidiscrimination laws.

As for other forms of employment discrimination: remember that the Bacon-Davis Act, by mandating certain wage rates on government jobs, effectively took away the competitive advantage that non-union contractors might have had. (Sowell says that proponents of the Bacon-Davis Act in the mid-1920s actually described this as an intentional goal.) Labor unions (with a few notable exceptions) were fiercely racist into the 1960s, with some still having written prohibitions on black members into the 1950s. Yes, during World War II, FDR attempted to correct some of this by mandating non-discriminatory hiring policies, but the damage was done. Remember that for much of the 20th century, you went into skilled trades because your father worked in that trade.
8.16.2005 6:54pm
Clayton E. Cramer (mail) (www):

"Corporate America ... is so strongly liberal in the higher echelons." (Bush's base is strongly liberal?)
I suggest that you go spend some time pulling up political contribution records. Corporate officers used to give largely to the Democrats, and even today, the Democrats get piles of money. I recall that during the campaign last year, of the top 25 contributors to 529 funds, you had to get down to number 20 before you found someone giving to Democrats. My own experience is that multimillionaires (of whom I know dozens) are overwhelmingly on the left.

"I grew up in the late 1960s, when homosexuality was just something that made you different, not bad." (Why were so many gays in the closet then?)
Perhaps they had a more realistic estimate of how damaged they were? Maybe things were different where you lived, but the prevailing sentiment where I grew up was, "If it feels good, do it."

"The only governmental institutions have put homosexuals into an inferior position are the military, and the civilian intelligence agencies." (how do you account for marriage, domestic partner benefits, legal inheritance rights, etc.?)
I mean with respect to employment.

You also seem to focus entirely on hiring/firing which constitutes only a portion of Title VII litigation. Certainly, harassment is a much more pressing issue for gays which you do not address. Homophobia in the workplace is rampant and there are numerous studies to support that fact.
Odd. The only employers that I have worked for would fire anyone that harrassed a fellow worker, for any cause--and certainly for being homosexual. I know of one company that fired a worker for posting a quote from the Bible outside his cube, and homosexuals complained. The employer certainly has that right, but the notion that corporate America isn't extremely pro-gay is bizarre to me.

Medis asks:


I'm interested in your suggestion that there has been no history of state encouragement of anti-gay discrimination. Lawrence, of course, was not decided so long ago. And as Scalia pointed out back in Romer, while Bowers was still good law, the relevant criminal laws provided grounds for believing that discrimination against gay people must be permissible, and indeed morally required (Scalia was ultimately vindicated in Lawrence on this point, although not in the way that he would choose). And do you really think being gay was never relevant to, say, employment as a public school teacher before the advent of anti-discrimination protection?
There's no question that state laws discriminated against homosexuals by making homosexual acts unlawful, and there was discrimination in employment such as the school teacher example. (But oddly enough, even though homosexual sex was a crime in Texas, big city police departments hired openly homosexual officers.) But the states didn't encourage or require private employers to discriminate. Can you give any examples of state laws equivalent to the one in Plessy, requiring private firms to discriminate based on sexual orientation? Can you give examples of governments consistently turning a blind eye to the murder of homosexuals? Can you give any examples of state governments segregating students by orientation? Search really hard; you might find a couple. But this was by no means pervasive in the same way that it was for blacks.
8.16.2005 7:06pm
JoeSlater (mail):
My line about "the one and only bad guy" was a half-serious overstatement. And I agree with you that government can be a powerful force for good or bad, and that we should be mindful of its powers.

But libertarians, in my view, consistently underestimate the force of private economic power to do really bad things to people, and libertarian writing on employment discrimination is an excellent example of that. And I believe they consistently underestimate it -- and ignore huge amounts of fairly obvious evidence in so doing -- because acknowledging the power of large private economic entities to do real harm to people in making hiring/firing decisions is part of the justification for government regulation of those entities (as at minimum the lesser of two evils), and that's antithetical to libertarianism.

As to other forms of discrimination, yeah, I've heard the "it's all the union's fault" and "it's all the fault of Davis-Bacon" arguments, and they are unpersuasive too. There's a longer version of this of course, but again, look at non-union shops, or look at employment before unions had significant rights, or look at industries outside the coverage of the NLRA or Davis Bacon. You know what? You still see tons of employment discrimination. Employers were racists. Communities were racist. Non-union as well as unoin co-workers were racist. We needed laws to deal with that.

Finally, although we're getting way far afield from gay rights, you are unfairly caricuturing labor unions. On the one hand, some were racist (and to that extent, I'm glad anti-discrimination laws now ban practices like excluding blacks). On the other hand, some (especially the CIO unions), successfully organized minorities and have greatly improved their wages, hours, and working conditions, from the 1930s through today. And, to bring this almost full circle, Title VII would not have been passed without the support of labor unions.
8.16.2005 7:08pm
JoeSlater (mail):
Clayton:

One more then I'm off for the day. The statistics show that plaintiffs do very badly in employment discrimination cases. I guess you could conclude that this is because lawyers file weak employment discrimination cases at a much greater rate than they file weak cases in other areas of the law, but that leaves the question of why that would be. And it's especially puzzling because many (possibly most) Title VII cases are brought on a contingency fee basis, because most individual employees can't afford hourly fees. Contingency fees means, of course, the attorney only gets paid if the client wins. So it would seem especially unlikely that a profit-maximizing lawyer would take a weak employment discrimination case on a contingency.

The other possible explanation is that, contrary to your previous post, the rules of employment discrimination make it really, really hard for plaintiffs to win -- harder than even plaintiffs' attorneys guess they will be. There are numerous law review articles arguing that.
8.16.2005 7:15pm
Medis:
Clayton,

I'm not claiming that sexual orientation discrimination, public or private, has the exact same history as racial discrimination. I'm just wondering why you think the history would have to be identical in order for there to be widespread discrimination against gay people today.

In other words, of course there are some historical differences. But what makes these historical differences relevant to the discussion? As far as I can tell, you aren't trying to justify discrimination against gay people, but instead are trying to argue that discrimination against gay people is not a serious problem. But I don't see how you get to the latter claim simply by pointing out these historical differences, because obviously there could be more than one historical path to discrimination in fact.
8.16.2005 7:48pm
Clayton E. Cramer (mail) (www):
Joe Slater:


As to other forms of discrimination, yeah, I've heard the "it's all the union's fault" and "it's all the fault of Davis-Bacon" arguments, and they are unpersuasive too. There's a longer version of this of course, but again, look at non-union shops, or look at employment before unions had significant rights, or look at industries outside the coverage of the NLRA or Davis Bacon. You know what? You still see tons of employment discrimination. Employers were racists. Communities were racist. Non-union as well as unoin co-workers were racist. We needed laws to deal with that.
I don't claim that it was all the fault of the unions, or of Bacon-Davis, but anytime you use the power of the government to accomplish some end, it will have far more influence than individuals or even well-organized groups--who lack the legal sanctioning power of the government.

One question: if we lived in such a fiercely racist society--how did the various civil rights laws get passed? School segregation, it is true, was struck down the Supreme Court--but most states did not have de jure segregation, and most states recognized interracial marriages when Loving struck down the remaining 16 state laws that did not. (Some of these state laws had been struck down by the courts, not popular opinion, I know.) How did this fiercely racist society pass laws to prohibit activities that they believed in so strongly?

Medis says:


I'm not claiming that sexual orientation discrimination, public or private, has the exact same history as racial discrimination. I'm just wondering why you think the history would have to be identical in order for there to be widespread discrimination against gay people today.
The argument advanced by advocates for same-sex marriage and striking down sodomy laws is that it is a parallel situation, and in the same way that Loving struck down the interracial marriage laws of 16 states, the courts should do likewise with laws defining marriage as "one man, one woman." The analogy is flawed historically, and I want to kill it.

In other words, of course there are some historical differences. But what makes these historical differences relevant to the discussion? As far as I can tell, you aren't trying to justify discrimination against gay people, but instead are trying to argue that discrimination against gay people is not a serious problem. But I don't see how you get to the latter claim simply by pointing out these historical differences, because obviously there could be more than one historical path to discrimination in fact.
I am arguing against adding sexual orientation to the discrimination laws for the following reasons:

1. It appears that the vast majority of such claims today are unmerited. Why add to the mess?

2. While I see no good reason for an employer to discriminate based on sexual orientation for the vast majority of jobs, there are a few where I am not comfortable--and for the same reason that I wouldn't want a heterosexual man in that same position. I would not want a homosexual working as a prison or jail guard in a facility for people of that same sex, for the same reason that I am not comfortable with a heterosexual man working as a prison or jail guard in a woman's prison. We used to just have a problem with male teachers taking advantage of female secondary school students--but the problem seems to be getting wider, with a shocking number of female teachers taking advantage of male students.

There are also subgroups within the homosexual community that, to put it bluntly, I don't want to see employed in certain jobs--ever. A few years back, San Francisco Police Department, as part of its effort to increase its gay officer collection, went recruiting. In a leather bar. According to the San Francisco Chronicle's light-hearted account, one of the recruiting officers explained that the nice thing about recruiting in a leather bar is, "We don't have to teach them use of restraint devices." Maybe they were just making a joke--but I do not want someone who get sexual pleasure from inflicting pain to be in a job that necessarily requires you to inflict pain. Can you see why? But this would be discrimination based on sexual orientation, would it not?

3. Sexual orientation includes a lot more than just homosexuality. When California finally passed a sexual orientation discrimination ban, it didn't directly define what "sexual orientation" meant. Does it include necrophiliacs? Does it include pedophiles? Does it include zoophiliacs? If a guy showed up at a day care center wearing a NAMBLA T-shirt, could they refuse to hire him? If they did refuse, wouldn't this be discrimination based on sexual orientation?

4. I hope that this isn't a surprise, but homosexuals have very disproportionate rates of alcohol and drug abuse. I have my suspicions that this reflects, for at least one subgroup of homosexuals, a history of abuse--and indeed, there are studies that shows homosexuals reporting disproportionate levels of child sexual abuse. Maybe a lot of homosexuals have their sexual orientation for some other reason--but the high correlation would suggest that for some, there is a causal connection. Not surprisingly, adult victims of childhood sexual abuse often have all sorts of serious emotional problems--and at least a few end becoming predators. There are some jobs where there may be a good case for discrimination. Not butcher, baker, or candlestick maker, but certainly for some jobs that involve children.
8.16.2005 8:16pm
BigBob:
1) You say "homosexuals have very disproportionate rates of alcohol and drug abuse."
All credible studies say that the cause of this abuse is the pressure and difficulty of living in a deeply homophobic society that thinks the worst of gay people (see, e.g., your post). Homosexuality itself doesn't cause the abuse. Your argument could continue a vicious cycle.

2) You say "there are studies that shows homosexuals reporting disproportionate levels of child sexual abuse."
Organizations flatly rejecting this claim include: The Child Welfare League of America, the American Academy of Child &Adolescent Psychiatry, the North American Council on Adoptable Children, the American Pediatrics Association, the American Academy of Famliy Physicans, the American Medical Association, the American Psychitriac Association and the American Psychological Association. These organizations also agree with my point #1 above.

3) You say "When California finally passed a sexual orientation discrimination ban, it didn't directly define what "sexual orientation" meant. Does it include necrophiliacs? Does it include pedophiles? Does it include zoophiliacs?"
We all know that there is no risk that courts will protect those who abuse people (or animals) unable to consent (children, dead people etc.) And if there were such a risk, how about we just add a statutory defintion? Not too hard!! Why does your argument require permitting discrimination against gay people?

4) You say "I do not want someone who get sexual pleasure from inflicting pain to be in a job that necessarily requires you to inflict pain. . . . But this would be discrimination based on sexual orientation, would it not? " Of course it would not!!! Are you joking? The "discrimination" here would be based on an entirely inappropriate comment that raises troublesome inferences about a person's propensity to inflict pain on other people. No judge (or jury) would hold that it is anti-gay discrimination. And if some crazy judge did so, the legislautre would rush in to fix that crazy ruling. So your argument is way off mark.
8.16.2005 8:48pm
Carol Anne:
What frustrates me about this entire dialog is the use of vague generalization, unsubstantiated claims and counterclaims. I wish we were shedding more light than heat, more facts and reputable sources than unvarnished opinions.

It takes more work, but it yields a higher-quality result in my opinion.
8.16.2005 10:20pm
Ulrich Bonnell Phillips:
As one commenter particularly colorfully put it,

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.


To put that ridiculous statement in its place, I only need to point to one number. This is not the number of libertarians in America, but the number of Libertarians in office. According to the Libertarian Party website, "As 2003 drew to a close, over 600 Libertarians were serving in public office nationwide."
8.17.2005 12:39am
Medis:
Clayton,

Obviously, a historical analogy is not killed simply because there are some differences. Rather, the differences have to be relevant to the point of the analogy. I don't think you have shown that your differences are relevant.

But I take it that you are now also trying to justify some common forms of discrimination against gay people. Others, I think, have done an adequate job of showing the various misconceptions and illogical conclusions in your views. I would just note that you are demonstrating why anti-gay discrimination might be widespread even if such discrimination is otherwise economically inefficient.

As I noted above, if one starts with all sorts of hardy misconceptions about gay people, then it may not be irrational to discriminate against gay people, in the sense that one might be willing to pay some material price in the name of a perceived self-interest in discriminating against gay people. Market forces cannot easily correct for this sort of behavior because market exchanges work on the basis of perceived self-interest, not actual self-interest. So, even if your aversion to hiring openly gay people as police officers or teachers ultimately led to a less effective police force and education system in fact, you might perceive that result as advantageous on the basis of your misconceptions about the counterfactual state of the world in which openly gay people had not been discriminated against.

However, I should note that I am not generally of the view that simply because there is a wrong in the world, there should be a legal remedy. But I think you are trying to show that there is no wrong at all, in the sense that wrongful anti-gay discrimination is not a widespread problem, and I really think that you have failed in that regard.
8.17.2005 9:40am
JoeSlater (mail):
Clayton:

Again, we are far afield of the original topic, but ... First, my claim about unions is that, although there are counter-examples, on the whole they have been, overall, more of a force for integration and raising the standards of blacks than for keeping them down. Second, unions are not government entities. Although the law allows them to collectively bargain, they were collectively bargaining well before any law permitted it. Unions are collections of private individuals that bargain with companies that are also collections of private individuals. The fact the law gives the the right to be exclusive representatives doesn't really change the fact that this is a private contract, because unions could and did baragin their way into exclusive representative status before the NLRA existed.

More broadly, to support a claim that unions and laws like Davis-Bacon were even a significant cause of race discrimination, you would have to show that there was more race discrimination in unionized industries and shops than in equivalent/comparable non-unionized industries and shops. And that simply isn't true.

And finally, as to the claim that unions are racist, black union membership today, and for some time now, has been *higher* than black participation in the labor force overall. So apparently black folks think unions are doing them some good.

You also ask, "if we were living in such a fiercely racist society, how did things change?" You're not denying that our society was racist in the sense that job discrimination was widespread throughout the economy, are you? Because there is no question that it was.

How it changed is a long story, but among other things there was a civil rights movement (started well before Brown), experience with the integrated army in the early 1950s, feeling that we were losing a propaganda war with the communist countries over our treatment of minorities, etc., etc. I would note that one of the major goals of the civil rights movement was Title VII, and I would again note that this law would not have passed without the support of organized labor.
8.17.2005 11:16am
Clayton E. Cramer (mail) (www):
Joe Slater writes:


More broadly, to support a claim that unions and laws like Davis-Bacon were even a significant cause of race discrimination, you would have to show that there was more race discrimination in unionized industries and shops than in equivalent/comparable non-unionized industries and shops. And that simply isn't true.
Your evidence for this is? You might be right, but I have seen no evidence to support that claim. Quite a number of a unions had explicit "no blacks" provisions. How could discrimination in non-union operations be any worse?


And finally, as to the claim that unions are racist, black union membership today, and for some time now, has been *higher* than black participation in the labor force overall. So apparently black folks think unions are doing them some good.
You are talking about now; I was talking about the historical record. Unions have changed, no question. But they were part of the mechanism that defeated the free market tendency to punish irrational discrimination.


You also ask, "if we were living in such a fiercely racist society, how did things change?" You're not denying that our society was racist in the sense that job discrimination was widespread throughout the economy, are you? Because there is no question that it was.
The nice thing about having control of the government, and enjoying the benefits of government assistance (as labor unions did from the 1930s onward) is that you don't need for the whole society to share your views—just the people that run things. Labor unions managed to impose their racism on a large part of the market for several decades.


How it changed is a long story, but among other things there was a civil rights movement (started well before Brown), experience with the integrated army in the early 1950s, feeling that we were losing a propaganda war with the communist countries over our treatment of minorities, etc., etc. I would note that one of the major goals of the civil rights movement was Title VII, and I would again note that this law would not have passed without the support of organized labor.
As well as most Republicans, and many Democrats. So a vast majority of fiercely racist Americans supported passage of the civil rights laws. You still haven't explained this.


Second, unions are not government entities. Although the law allows them to collectively bargain, they were collectively bargaining well before any law permitted it. Unions are collections of private individuals that bargain with companies that are also collections of private individuals. The fact the law gives the the right to be exclusive representatives doesn't really change the fact that this is a private contract, because unions could and did baragin their way into exclusive representative status before the NLRA existed.
I can't quite believe that you are making this argument. Yeah, there were labor unions successfully getting exclusive representative status before the NLRA. (And there was also a time when labor unions were the only participants subject to the Sherman Anti-Trust Act.) So why did Congress bother passing NLRA? Because the NLRA made it a lot easier for labor unions to do this. Davis-Bacon also took away any incentive for government contractors to use non-union labor, strengthening the position of labor unions. Do you honestly not think that NLRA increased the power of labor unions, and therefore the unionized share of the work force?
8.17.2005 12:39pm
Clayton E. Cramer (mail) (www):
Big Bob says:

1) You say "homosexuals have very disproportionate rates of alcohol and drug abuse."
All credible studies say that the cause of this abuse is the pressure and difficulty of living in a deeply homophobic society that thinks the worst of gay people (see, e.g., your post). Homosexuality itself doesn't cause the abuse. Your argument could continue a vicious cycle
Deeply homophobic society? It isn't 1960 anymore. This "all credible studies" claim is pretty laughable, since the reading that I have done suggests that psychologists who study this issue have lots of differing theories, none of which seems to have won the debate.


2) You say "there are studies that shows homosexuals reporting disproportionate levels of child sexual abuse."
Organizations flatly rejecting this claim include: The Child Welfare League of America, the American Academy of Child &Adolescent Psychiatry, the North American Council on Adoptable Children, the American Pediatrics Association, the American Academy of Famliy Physicans, the American Medical Association, the American Psychitriac Association and the American Psychological Association.
THey can reject this claim all they want. If you followed the link that I provided, you will see that a survey done by the San Francisco Department of Public Health found that very high percentages of homosexuals and bisexuals reported having been sexually abused as children.


3) You say "When California finally passed a sexual orientation discrimination ban, it didn't directly define what "sexual orientation" meant. Does it include necrophiliacs? Does it include pedophiles? Does it include zoophiliacs?"
We all know that there is no risk that courts will protect those who abuse people (or animals) unable to consent (children, dead people etc.) And if there were such a risk, how about we just add a statutory defintion? Not too hard!! Why does your argument require permitting discrimination against gay people?
We know that the courts won't protect those people? Why? Why is sex with animals wrong? Noted animal rights thinkers like Peter Singer argue that sex with animals isn't necessarily wrong. Why is sex with dead bodies wrong? A dead body is just a piece of meat. Remember that the ACLU has argued in court that minors have a constitutional right to have sex with adults—which effectively means, that adults have a right to manipulate minors into sex. The ACLU is also now supporting the right to polygamy.

A statutory definition is a great idea. But that's not what California's legislature passed. I presume that homosexuals wanted the door left open for a reason.
8.17.2005 12:46pm
Wowzer:
"I presume that homosexuals wanted the door left open for a reason."

This sentence reveals so much. It shows that you think of homosexuals as a homogenous group with some sort of perverted secret agenda. It's outragoues and terrifying.

Your responses to the various arguments here are so poorly reasoned that I feel embarrassed for you. Why are you dedicating so much time to trashing gay people?
8.17.2005 2:31pm
JoeSlater (mail):
Clayton:

The evidence for race discrimination throughout the economy in the U.S. through the 1950s is overwhelming. There are many, many histories of individual industries, of African Americans in the economy, etc. that demonstrate it. And as to burdens, you are the one making the odd claim that this discrimination was mostly through the influence of government and/or unions, rather than the pervasive societal racism that pretty much any serious history of the U.S. acknowledges was wide-spread. So let me ask you to provide evidence to support your claim.

You say "quite a few" unions had "no blacks" provisions so how could it be any worse? Well, "quite a few" unions did *not* have such provisions, and as I've already posted, CIO unions did a good job organizing blacks and other minorities. The American Federation of Teaches has a proud history on race, as do a number of other unions. And those unions made it much better for blacks, comparatively speaking. There were certainly more blacks in unions and even in positions of union leadership in the 1930s-50s than there were blacks in corporate boardrooms in that era.

The idea that "labor unions managed to impose their racism on a large part of the labor market for several decades" is unsupported and unsupportable. Racism in the labor market came long before unions, and again you have no evidence that the portions of the labor markets in which unions were strong were any more subject to race discrimination.

As to unions being private bodies, of course they are. The mere fact that law permits them to enter into contracts, under certain conditions and with certain limitations, does not make them "public." Sure, the NLRA made union organizing easier, but that was because of the incredible anti-union state of the law before then: the age of ex parte injunctions, and, as you point out, anti-trust prosecutions.

There are also many fine histories of the civil rights movement that could help answer your claims about how we went from a society segregated at almost all private and public levels to a more integrated society. I couldn't do them justice by summarizing them here. But again, you don't have to dig very deeply to discover that employers in industries not regulated by government or heavily organized by unions were discriminating on a massive scale.
8.17.2005 2:47pm
Bill (mail):
Here's some, perhaps a little offensive, hyperbole for you from a SWM:

I don't see why these gay people are particularly keen to get the right to either (a) marriage or (b) employment. These are two conditions that I've been striving to avoid as long as possible... and I'd recommend the same to anyone I cared about (and wish they could afford to be unmarried and unemployed).
8.17.2005 6:10pm
JoeSlater (mail):
Bill:

As a married SWM who recently attended a (lovely and touching) gay wedding in Mass., I can tell you there were lots of "you fought for the right to GET MARRIED?" jokes from folks like me. At least until the wife kicked me.
8.18.2005 11:24am