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Affirmative Action (in the Sense of Exemption from Antidiscrimination Law) for Gay Venues?

From Peel Hotel Pty Ltd., Victorian Civil & Administrative Tribunal, VCAT 916 (24 May 2007) (some paragraph breaks added):

8 The Peel is a hotel and social venue. It primarily provides (as well as its hotel services) dancing and music. It is very popular. It has many hundreds of patrons on weekend nights (including Fridays). Over a week, it will have thousands of patrons.

9 The Peel aims to provide its facilities primarily for gay men. While is has marketed itself primarily to the gay male community, it has not hitherto sought exemption from the EO Act because it was believed that it could operate in a way that welcomed all, excluded none, but focused on or was aimed primarily at gay male patrons. It has this focus because it seeks to provide a safe, non-threatening, comfortable and enjoyable social environment for the gay male community.

10 I accept Mr McFeely's evidence that providing such an environment is important for a number of reasons. Although gay men are now less at risk than they were in the past to various issues and behaviours, there are still instances of sexuality-related violence, insult, ostracism, derision, harassment and hostility. These are directed to gay men by other members of the community. Some of these occur when gay men display towards each other what society would tolerate among heterosexuals behaving as a couple --- kissing, hugging, or expressing love, attraction or affection in a physically intimate way. This venue is designed to provide an environment where gay men can do these things, can socialise, can make friends, can meet and find prospective partners without an atmosphere of derision, hostility or insult or even of violence. It provides an atmosphere where they can express themselves physically or sexually in a way that would be acceptable among men and women in a mixed sex venue.

11 The venue aims to provide gay men with the same opportunities as mixed sexes have in the venues to which I have referred. There are many thousands of these venues across the Melbourne CBD....

13 The venue has operated without difficulty for many years. It is an all-night venue, operating from 9pm until dawn. It has live music and no cover charge. Perhaps because of these factors, increasing numbers of heterosexual men and women and lesbians have particularly over the past year asked to enter the venue. A number of difficulties have arisen. I accept Mr McFeely's evidence and Sergeant Mercer's evidence about these.

14 If heterosexual men and women and lesbians come to the venue in large groups, then their numbers may be enough to "swamp" the numbers of gay male patrons. This would undermine or destroy the atmosphere which the company wishes to create. Sometimes, heterosexual groups and lesbian groups insult and deride and are even physically violent towards the gay male patrons. In doing these things, they use sexually-based insults. Sometimes, groups seek to use the venue for parties and it is clear from Mr McFeely's affidavit that these groups wish to look at the behaviour of the gay male patrons as a kind of spectacle or entertainment for the group's enjoyment. Entry of these groups would undermine or destroy the unique atmosphere which aims to foster and not frighten or discomfit its gay male patrons.

15 I accept Mr McFeely's evidence that there are a large number of alternative venues which provide similar kinds of services to that provided at the Peel Hotel. These venues can be attended by people of any sex, any sexual orientation or any gender identity. I also accept his evidence that there are a very significant number of venues which market their services to lesbians. The Glasshouse, which is a venue close to the Peel Hotel, is one of these.

16 The Peel does not wish to have an all-male or all-gay male environment. It simply wishes to preserve its primarily gay male environment and its non-threatening atmosphere in which gay males can feel comfortable to express affection, physical intimacy or sexuality in a way that will not make them a target of derision, hostility or criticism and where that behaviour might, if expressed in a mixed sex venue, lead to that hostility, derision or criticism.

Should the exemption be granted?

17 In my view, it should.... There is no express exception provision which clearly applies. However, the application is in the spirit of those express exception provisions which seek to allow special measures to be taken to redress disadvantage suffered by those with a particular attribute. An example of these is s82.

18 The exemption promotes that objective of the Act which is to promote the recognition and acceptance of everyone's right to equality of opportunity. It seeks to give gay men a space in which they may, without inhibition, meet, socialise and express physical attraction to each other in a non-threatening atmosphere, in a way that heterosexual couples have in mixed sex venues.

19 It is also consistent with the scheme of the Act. The Act now includes attributes of sexual orientation and gender identity. It has always included the attribute of lawful sexual activity. The objective concerning the recognition and acceptance of equality of opportunity applies equally to all attributes, including these three. Just as it is consistent with the Act's objective to provide special measures to redress disadvantage suffered by, for example, women or those with disability, so also is it consistent with that objective to provide this venue for those with a particular sexual orientation.

20 The exemption also seeks to prevent discrimination against gay men, for whom this venue is designed. The anti-social behaviour which would be at the heart of a decision to refuse or restrict entry to groups of heterosexuals or lesbians is sexuality-based behaviour and includes sexuality-based insults and derision. It would be most unfortunate if at this venue, gay men were subjected to the very behaviour that the venue seeks to protect them from.

I would add that I take a similar view of the restriction or refusal of entry to those groups who wish to use the venue for "hens' nights" and the like, where they wish to use the gay male patrons as a form of entertainment. To regard the gay male patrons of the venue as providing an entertainment or spectacle to be stared at as one would at an animal at a zoo, devalues and dehumanises them. It is, although subtle, another form of sexuality-based humiliation or discrimination. In my view, it is appropriate to grant the exemption.

A few thoughts:

(1) I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that.

I take it that the bouncers at the nightclub don't have perfect gaydar; I doubt they'd evict a group of would-be harassers (likely an all-male group, I'd expect) because they can tell the harassers aren't gay. They'd evict them because they're being violent or insulting. Why then not just have a policy of evicting the violent.

(2) If the concern is about gays' discomfort with being viewed in a certain way, isn't that close kin to the concern that has long been used to support discrimination against gays? (A) Some straight men don't like feeling that they are being viewed with lust by some gays. (B) Some gay men don't like the feeling that their social activities are being viewed as entertainment by some women.

The premise of bans on sexual orientation discrimination is that attitude (A) is no reason to exclude people from public places based on sexual orientation: If you don't like what you think someone is thinking when he's looking at you, deal with it, don't have him kicked out. Why should attitude (B) be any more persuasive a justification for discrimination?

(3) If the concern is about gays wanting to be in a predominantly gay environment, my sense is that successful gay venues can generally accomplish this just fine without kicking out nongays. Such venues tend to disproportionately attract gays, and while there are occasional outsiders visiting, the repeat business will largely be those people who feel most comfortable in the environment, and most interested in the environment. (Maybe I'm too influenced by having lived near West Hollywood for so long, though; I'd love to hear what others with other experiences have to say about this.) And even if for some reason too many straights show up and the venue stops being seen as having "the atmosphere which the company wishes to create," I don't quite see why maintaining a mostly-gay atmosphere is any stronger a justification for discrimination than maintaining an all-straight atmosphere, an all-male atmosphere, an all-female atmosphere, an all-Armenian atmosphere, or whatever else.

(4) One can debate whether bans on sexual orientation discrimination (or other discrimination) in privately owned public places are sound. But it seems to me that the project of persuading people to treat people equally without regard to sexual orientation will be more retarded than advanced by having the antidiscrimination law itself discriminate. Even if there are exceptions to this, and one accepts "affirmative action" justifications for special treatment for historically disfavored groups, it seems to me that there ought to be at least some powerful and factually supported reason for any particular justification. I don't see much such reason here.

Thorley Winston (mail) (www):


The premise of bans on sexual orientation discrimination is that attitude (A) is no reason to exclude people from public places based on sexual orientation: If you don't like what you think someone is thinking when he's looking at you, deal with it, don't have him kicked out. Why should attitude (B) be any more persuasive a justification for discrimination?


I guess this is the point where the actual libertarians separate themselves from the social liberals. If it's a privately owned establishment, they should be able to refuse service to anyone they want for any reason they want. Period.
5.30.2007 6:48pm
Deoxy (mail):
HERESY!

Don't you KNOW that "minority" groups are inherently more deserving of protection?!??!?!!?!

"Nondiscrimination" has been rather specifically about intentionally discriminating for years. Nothing new here.

Some animals are more equal than others, just like usual.
5.30.2007 6:49pm
Carolina:

I guess this is the point where the actual libertarians separate themselves from the social liberals. If it's a privately owned establishment, they should be able to refuse service to anyone they want for any reason they want. Period.


Agreed. But us "actual libertarians" seem to be a small minority. Consider the nuclear meltdown suffered by many in this country when the Supreme Court had the temerity to rule that the Boy Scouts could exclude those who did not agree with their plainly stated principles.
5.30.2007 6:57pm
Ken Arromdee:
As the original post points out, one might believe that regardless of whether bans on discrimination are bad, if they exist they should be enforced equally. A libertarian might think that the hotel should be allowed to serve whoever they want if this is done by getting rid of antidiscrimination laws for all people, but that allowing the hotel a special exemption from antidiscrimination laws that applies only to them is wrong.
5.30.2007 7:34pm
r78:

I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that.

Are you serious?
5.30.2007 7:47pm
Milhouse (www):
A few points.

1. As a matter of correcting the record, this problem did not arise, as the Peel told the tribunal, "over the past year". It's been going on for at least 15-20 years that I know of. In my misspent youth I used to accompany a lesbian friend to the Peel, and she said she needed me as a male escort because unaccompanied women were often not allowed in. I express no opinion on the propriety of this policy, but it's been in place for far longer than a year. Perhaps it's lately become more vigorously enforced; perhaps women are being excluded even with male escorts. As for men, I have no idea how they decide which ones to admit, but I think the general idea is (or at least used to be) that straight men were unlikely to feel comfortable there, and would soon leave, and therefore weren't a problem. Perhaps that's changed recently, with the greater prevalence of men who are straight but not narrow, and who feel comfortable in gay venues.

2. The issue isn't the bouncers evicting people, but the doormen not letting them in in the first place. Obviously anyone appearing to be rowdy on the way in will be excluded, and anyone who starts misbehaving once inside will be evicted, but the idea is not to have such incidents in the first place, by keeping out those who are likely to cause them. At least, that would be the theory.

3. This entire analysis is missing the elephant in the corner. The Peel is a meat market. Many or most patrons of the Peel go there not so much for "social interaction" and having a few drinks with friends, but to meet other men, dance with them, make out with them, and perhaps go home with them. For these patrons to be attracted to the venue, they must feel confident that it's a place where they stand a reasonable chance of success, where most other patrons are open, at least in principle, to such interactions, and won't take offense at an attempt to initiate them.

Straight men and women go to straight venues, where they know that most members of the opposite sex are after the same thing they are, and the only things they need to worry about are their personal attractiveness, charm, and social skills. Gay people, however, if they were to go to such venues, would have little chance of success no matter how attractive, charming, and socially skillful they were, simply because 95% of the members of the same sex they meet are not interested in them even in principle, and a large number would not just politely turn down an approach, but react with revulsion, and perhaps with violence. That's the main reason why gay venues like the Peel exist, and if it gets a reputation for having "too many straights", then the primary target audience will go elsewhere.

(That's also, perhaps, where the fear of violence comes in. Many straight men know how to behave themselves in most situations, and are not violent or bigoted; but if you're going to a gay venue you have to be prepared for the possibility of sexual advances from other men, including quite frank or even crude advances that would not be acceptable in most places, and you have to be prepared to turn them down politely and without giving offense. I can imagine that many men who think they are cool enough to go to such places find out the hard way that they're not, and unfortunately so do their suitors, who didn't come there to get roughly pushed away, or worse.)
5.30.2007 8:05pm
Brian K (mail):
Why doesn't the Peel just vary a cover charge to allow in the people it wants like nearly every other club?

They can charge say a $10 cover to everyone and have the bouncers hand out free passes to people who are most likely gay men. This is analogous to the girls get in free policies that many straight clubs have and the "friends" of the bouncer or people on the "list" get in free policies. (I put those in quotes because I doubt most people who get in free are actually on a list or know the bouncer...I think its much more likely that the person conforms to the standards that the club has set.)
5.30.2007 8:30pm
Sebastian Villarreal:

That's the main reason why gay venues like the Peel exist, and if it gets a reputation for having "too many straights", then the primary target audience will go elsewhere.


The restaurant and entertainment business is notoriously finicky -one day your venue is in, the next it is out. Venue owners constantly try to keep their places fashionable and attractive to the crowd they cater to.
When a 'straight' club in Chicago starts getting too frequented by the 'wrong' crowd: north side hipsters, or faux artists in New York, or whatever, it will probably lose its fashionable status, crowds will relocate, and it will close its doors. Why should gay bars be considered any differently?
It seems that the ruling is protecting Peel's status as a "fashionable" venue, something it is completely out of line doing. Of course, if patrons are rude or violent, they should get kicked out. But being there should be no basis for discrimination.
If the gay patrons at Peel do not like the environment, some club entrepreneur will start a new club, they will migrate, and everyone will have fun until the new club gets "discovered". It might be inconvenient to Peel's owner, but no one would be discriminated against.
5.30.2007 8:37pm
glangston (mail):
The doormen at clubs like this in LA would use excuses like "no open-toed shoes" for women to keep them out (safety..broken glass etc.). My girlfriend was very friendly towards gays and wanted to go in. Of course, they didn't see things quite the same and considered her a distraction, at best.

I think there's some evidence that places like this tend to encourage more risky sexual behavior. If true, then .gov sanctioning these havens could be counter-intuitive to the best interests of all citizens.
5.30.2007 8:42pm
Henri LeCompte (mail):
Just out of curiosity-- how does the doorman know you're gay? I mean, he can't decide who goes and who stays without knowing that, right? Have you act out a scene from Rent?
5.30.2007 9:07pm
Owen Hutchins (mail):

Consider the nuclear meltdown suffered by many in this country when the Supreme Court had the temerity to rule that the Boy Scouts could exclude those who did not agree with their plainly stated principles.



Far less than the meltdown that occurred when the BSA was told that it could discriminate, but not with public funds, and lost a lot of sweetheart deals.
5.30.2007 9:35pm
Eugene Volokh (www):
r78: Not only was I serious, but I actually gave, you know, an argument in support of the assertion you quoted. Maybe my argument is wrong, but there it is, all ready to be addressed by those who care to do so.
5.30.2007 10:28pm
Mike BUSL07 (mail):
This isn't about separating the libertarian men from the socially liberal boys, (or vice versa, no gay pun intended). What's offensive to me, as a libertarian, is not that a private venue was given the right to exclude as it sees fit, but that this right, by being granted here and denied elsewhere, underlines the tension between those who would give the "exclude right" to all, and those who would give it to gays, but not to, say, Christians.
5.31.2007 12:10am
hayesms73 (mail):

I sympathize with everyone's desire not to be attacked or insulted, and gays certainly have special reason to worry about that. But if the concern is antigay violence or insults, I'm not sure how the "gay men only" policy would address that.


Actually, I would suspect that a gay-male only policy would function as a fairly efficient means of weeding out homophobics as few, if any, gay men who patronize gay bars are homophobic in the requisite sense. And what's the alternative? That patrons be given pyschological evaluations prior to entry?

At any rate, I find it deliciously ironic that so many straight people, who for so long have fought so hard to exclude gays--burning them at the stake, subjecting them to psychotherapy, ostracizing them socially, banning them from church and military and marriage--now cry foul when a few gays take a stand to preserve the few gay-only safehavens open to them.

BTW, as a native of North Carolina, I can assure you that West Hollywood's tolerance of gay men is not quite the norm in most of this world we live in, including most in communities of America.
5.31.2007 12:35am
Milhouse (www):
hayesms73, I doubt that any of the straight men excluded from the Peel have ever "fought so hard to exclude gays--burning them at the stake, subjecting them to psychotherapy, ostracizing them socially, banning them from church and military and marriage".

Henri LeCompte, the doorman at places like this will generally have quite good gaydar, and be able to pick most straight men out of the queue. But the object isn't 100% efficiency, or even close. It doesn't matter if 5% or 10% or even 20% of the men who get in aren't gay, so long as they don't turn violent or hostile when subjected to sexual advances. It's when the percentage gets much higher than that, that it stops functioning as a place for men to hook up with other men.

Of course even gay men who get in aren't all – or always – on the prowl, and so may not be receptive to being hit on. But even at worst they'll be cruel ("you and me? you've got to be kidding!"), not angry ("how dare you?"), just as straight men might be in turning down advances from women.

By the way, about 16 years ago the Sydney Gay and Lesbian Mardi Gras had a similar problem – the dance party had become so popular that it was being swamped with straight people, and the gay people were getting upset that their own event was turning into a hostile space. The solution was that tickets would only be sold to members of the organisation that holds the dance. Any member could buy up to 5 tickets, but the membership books were open to inspection by anyone, and the idea was that the kind of people they didn't want showing up would be reluctant to join a Gay and Lesbian organisation and have it known that they were members.
5.31.2007 1:01am
ReaderY:
But why shouldn't any business which wants to cater primarily to patrons who prefer a same-gender environment be permitted an exemption? After all, admitting women can drown out the special same-gender atmosphere which makes the regular crowd feel comfortable in virtually any business establishment.

If personal discomfort of core patrons at having opposite-gender members present is adequate grounds for an exception, when would the rule ever apply?
5.31.2007 4:37am
matts117:

Maybe I'm too influenced by having lived near West Hollywood for so long, though; I'd love to hear what others with other experiences have to say about this.) And even if for some reason too many straights show up and the venue stops being seen as having "the atmosphere which the company wishes to create," I don't quite see why maintaining a mostly-gay atmosphere is any stronger a justification for discrimination than maintaining an all-straight atmosphere, an all-male atmosphere, an all-female atmosphere, an all-Armenian atmosphere, or whatever else.


This quote made me think of what's happened with the gay bar named The Abbey in West Hollywood. A few years back, this former coffee shop expanded substantially and became a huge hit in West Hollywood. It was THE important bar to go to as a gay man. The bar became successful enough that, from what I've been told, the owner sold to a syndicate of buyers. Around that time, the "comfortable" atmosphere started attracting large groups of straight woman, as well as oppposite-sex couples who tended to make out on the couches as gay men shuffled by. Within a year or so, the gay clientale shifted to other venues, which in turn reduced the popularity of the bar. I suspect that the investors did not get the return they expected...
5.31.2007 10:13am
Bruce Hayden (mail) (www):
But why shouldn't any business which wants to cater primarily to patrons who prefer a same-gender environment be permitted an exemption? After all, admitting women can drown out the special same-gender atmosphere which makes the regular crowd feel comfortable in virtually any business establishment.
At least to me, that is the problem. The rules on when you can discriminate seem to be quite discrimatory. You can't have male-only public venues, but female only gyms are fine. Ditto for male colleges versus female colleges. Now those involve sexual, versus sexual orientation, discrimination. But of course here they also seem to discriminate against female homosexuals.

This slippery slope here may be that if homosexual male clubs are allowed to discriminate against everyone else so that its patrons can feel "safe", then why shouldn't black male venues be allowed to do the same? Or, horror upon horror, white male venues?

Maybe my point here is that if making one group feel comfortable is justification for discrimination in public accomodations, then the standard should be applied universally, and not selectively and politically correctly.
5.31.2007 10:18am
Ken Arromdee:
At any rate, I find it deliciously ironic that so many straight people, who for so long have fought so hard to exclude gays--burning them at the stake, subjecting them to psychotherapy, ostracizing them socially, banning them from church and military and marriage--now cry foul when a few gays take a stand to preserve the few gay-only safehavens open to them.

I find it interesting how so many Democrats, who fought to preserve slavery in the Civil War, now cry foul about racism. Well, in fact, I don't. (I'm wondering what position to take on non-Jews, since non-Jews have killed Jews in the past.)

Not only are you talking about two different groups of straight people, come on. Do you honestly think that straight people who *want to go into a bar where there are lots of gays around* are likely to be the kind of people who'd burn gays at the stake?
5.31.2007 10:23am
Elais:
Ken,

I've seen a lot of conservatives/republicans try to claim Democrats supported slavery. Like arguing down is up.

What's up with that?
5.31.2007 10:32am
Happyshooter:
The Univeristy of Michigan had a rule against directly using student fee money for alcohol events...unless it was for gay events. That was in the middle of their late 90s anti-drinking jihad.

Some animals are more equal than others.
5.31.2007 10:57am
Mr L (mail):
Elais, reading comprehension is in order. Ken's comment was in reaction to a prior comment that deemed it 'ironic' that the 'same people burning gays at the stake' are now demanding entrance to gay clubs, which is stupid because it's clearly not anything close to the 'same people' and is merely a crude attempt to tar those demanding a little consistency from the tolerance brigade.

And speaking of the 'Democrats supported slavery' meme, that was in response to the equally crude 'Republicans supported slavery'. It also has the merit of being (at least superficially) more factually accurate, as well. :)
5.31.2007 11:06am
Houston Lawyer:
Elias

Lincoln was a Republican.
5.31.2007 11:43am
Hoosier:
To follow-on with Houston:

Think of the 1850s-1860s.

Which party contained the former Free Soilers and former Conscience Whigs?

Which party contained the Fire-Eaters and the Copperheads?

Which party ran in 1856 on "Free Soil, Free Men, Fremont"?

There certainly were anti-slavery Democrats, e.g., Andy Johnson. But there was a reason that the GOP saw "The Democracy" as the political arm of the "Slave Power."
5.31.2007 12:06pm
whit:
i just want CONSISTENCY.

if a private business should be able to discriminate on account of sexual orientation, than that should apply to all private businesses - excluding gays, straights, or whatever

the same holds true with gender, race, etc.
5.31.2007 2:44pm
Ramza:
Lets be honest, the venue described above is designed as a "meat market," it is about fun, it is about sex, and it is about a possibility of a romantic relationship (long term or short term, for whatever the reason).

Now for the sake of argument, I am going to focus on the possibility of a romantic relationship.

-------------------------
Hypothetical 1) If this was a speed dating business and all the patrons were heterosexual, the business forms two groups "one male group" and "one female group" and have the men alternate so each time he is talking to a female. People in Group A (the men) are forced to never talk to other people in Group A since the motive is dating, people in Group A (the men) talk to people in Group B (the women) though and rotate through the entire opposite Group before the end of the night. This is because the the men have no interest in dating other men for they are all heterosexual, and same for the women dating the women. To save people time and anguish the speed dating business limits the groups to all heterosexuals? Would this be discriminatory? Would this be ethical? Would this be legal under Australia statue?
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Hypothetical 2) Similar arrangement as the above hypothetical with the heterosexuals, except the speed dating business also does homosexual groupings. Would these homosexual men and women have to be mixed with the straight men and women for it to be non discriminatory, ethical, legal under the Australia statue?
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Hypothetical 3) Similar arrangement as the above hypothetical except the business has 3 "main groups" the heterosexual group (with Group A and Group B subgroups), the lesbian group (one main group and you alternate partners), and the gay men group (one main group and you alternate partners). All 3 speed dating events are housed in the same room (it is a large hall) but in different corners of the hall. Would this policy be discriminatory? Ethical? Legal under the Australia statue?
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Hypothetical 4) Similar arrangement as the above hypothetical except the business now puts the 3 main groups in "different rooms". Would this policy be discriminatory? Ethical? Legal under the Australia statue?
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Hypothetical 5) Similar arrangement as the above hypothetical except the business now puts the 3 main groups in "different locations" and host the events at "different times". Would this policy be discriminatory? Ethical? Legal under the Australia statue?
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Hypothetical 6) Similar arrangement as the above hypothetical except there are now 3 business which caters to each of the main groups , all three are owned by the same owner but are different business entites. Would this policy be discriminatory? Ethical? Legal under the Australia statue?
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Hypothetical 7) Similar arrangement as the above hypothetical except there are now 3 business which caters to each of the main groups , all three are owned by different owners and are different business entites. Would this policy be discriminatory? Ethical? Legal under the Australia statue?


One last hypothetical, how is this situation any different than the above hypothetical besides The Peel is a Hotel and Dance establishment instead of a speed dating service? (I am also assuming it serves liquor and/or food). Is the main purpose of the Peel to be a "Hotel and Dance establishment" or is it (and lets be honest here) a meeting establishment for gays and lesbian for the purpose of recreation? Would this lawsuit exist if we had separate but equal facilities for the straight and gays?
5.31.2007 11:26pm