Positive Liberty

I agree with Ed Brayton’s sentiments entirely. California has just added the category of “sexual orientation” to its pre-existing list of protected civil rights categories.

A few comments. First, keep in mind these antidiscrimination codes almost always come from statutes, not judicial decisions. And the California code is a democratically enacted statute signed into law by an executive. This demonstrates what a canard is the antigay right’s oft-repeated notion that the judiciary, not legislatures reflecting “the will of the people,” primarily advances “the gay agenda.”

Second, although these antidiscrimination laws do indeed limit private freedom, that’s an issue not particular to “sexual orientation codes,” but to antidiscrimination laws in general. Given what’s on the “official list” of protected categories, nothing inherent in the “sexual orientation” category should disqualify it from the list. As I wrote recently:

Granting “sexual orientation” some official status as a civil rights category is a controversial issue. Some on the right fault gays for even “asking” for such, noting that you can’t compare race with sexuality. And while many gay rights advocates often invoke the racial analogy, it has become, in my eyes, more of a thoughtless platitude of the anti-gay right to claim “you can’t compare sexual orientation with race, therefore no civil protection for you.” If we lived in a world where race and only race was the only protected anti-discrimination category, the point might be apt. But that’s not the world we live in. Instead, it’s race, color, gender, religion, ethnic origin, age, disability, pregnancy at the federal level and many others, including “sexual orientation” at the state level.

And of course, the antigay right evidences utterly faulty logic whenever it tries to argue that presently existing antidiscrimination statutes are just fine, as long as sexual orientation is kept off the list, because it’s not like the other categories. From WorldNutDaily:

“As a citizen of California and a religious person, I am terribly disappointed in Gov. Schwarzenegger,” said Meredith Turney, the legislative liaison for CRI. “It is bad public policy to add to the list of protected classes a sexual behavior.

“Equating sexual preference with the immutable characteristics of age [sic], national origin or race will result in other variable behaviors being added to the list of invariable classes rightfully protected,” she said.

Notwithstanding the fact that most experts who have studied the issue believe sexual orientation to be immutable, at least for most people, mutability is not a prerequisite for official civil rights protection. Age certainly is not immutable, as erroneously claimed. Age is the very opposite of immutable; it is in a constant state of change as we are growing older by the moment. Of course, age isn’t chosen. But one’s religion is entirely a matter of choice and thus mutable. It could be argued that “religion” is special because such rights are enshrined in the Constitution. Sure, but that justifies prohibiting public, not private discrimination on the basis of religion. Before the Civil Rights Act of 1964, it was entirely legal to discriminate on the basis of religion in private markets. Likewise disabilities often are 1) mutable (they can be cured) and 2) result from activities that are entirely a matter of choice. For instance, Christopher Reeve became disabled and thus covered under the ADA only after he made the choice to engage in a risky behavior — jumping horses. Finally, pregnancy is protected at the federal level by the Pregnancy Discrimination Act. And unless the pregnancy results from rape, such is entirely a matter of chosen sexual behavior.

All of this isn’t to justify antidiscrimination codes as they apply to private markets but rather to debunk the notion that antidiscrimination codes traditionally protect racial categories only and all other categories on the list are “just like race” in the sense that they are immutable and sexual orientation is not. What nonsense.

Trackback URI | Comments RSS