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From Non-Discrimination to Anti-Discrimination

Interesting post from Timothy Burke, but he's overstating the assymetry between secularists and theocrats:

A culturally conservative crusade led from the White House is not the same thing, not a mere flipping of the coin, a karmic reversal. An evangelical Christian can refuse to consume pornography, but if pornography is outlawed, then anyone who wishes to view it is a criminal. Feeling the need to avert one's eyes and being subject to criminal penalty are very different things. It's the difference between freedom and unfreedom, between the Bill of Rights and a series of wrongs.
That's true with regard to pornography, but if you look at the cultural issues writ large it's less true than Burke seems to think.

Consider the speed with which, after hundreds of years of institutionalized racism, the US went from a regime where the state enforced racism to one where it enforced anti-racism. The spirit of the pre-Brown era was that race-mixing was bad, so the government should enforce discrimination. The spirit of Brown was that state-sponsored discrimination was bad, and should be outlawed. But the spirit of the Civil Rights Act was that racism was bad, so the government should enforce non-discrimination by private actors operating their private property. Now I don't have a problem with that, but given the history, is it really so implausible for cultural conservatives to think that the dismantling of state-sponsored discrimination against gays and lesbians is the first step toward state-mandated non-discrimination against them?

In fact, it's not implausible at all. Many of our more progressive jurisdictions already have a variety of anti-discrimination legislation on the books. The Democratic Party is on record as favoring legislation that would put the federal government in the position of ensuring that private employers do not discriminate on the basis of sexual orientation. There may be no "gay agenda" but gay rights groups certainly have a list of things they would like to achieve, and that list involves following the Civil Rights movement's footsteps and securing not non-discrimination policies from the government, but anti-discrimination policies.

I think that for reasons Timothy outlines, it's a little unfortunate that progressives are so unreflectively accepting of this sort of maximal program. The Civil Rights movement should not be used willy-nilly as a model for what every marginalized group in America ought to do -- the history of African-American subordination is unique. I think discriminating against people on the basis of sexual orientation is hateful, irrational, and wrong. I would discourage people from doing it. Strongly discourage them. But on the other hand, if you are a property owner and you want to rent out some property you own, why, exactly should the government be in the business of preventing you from engaging in some irrational discrimination with regard to who you accept as tenants. In the case of an African-American prospective tenant one can tell a plausible story about the history of segregation in America, housing covenants, school districting, etc. and make the case that this sort of interference in people's freedom to be racists is warranted. But should a person's sincerely-held religious conviction that his private property ought to be disposed of in a manner that discriminates on the basis of sexual orientation really be prohibited by the federal government? How different is that, really, from the people who want to run around banning pornography?

I have a hard time seeing the case. Discriminating as a private individual against a gay man because he is a gay man is, in my opinion, a very cruel way to behave. Nevertheless, we don't make a habit out of banning cruel behavior in this country unless it involves physical harm or misuse of public office. The sense among culturally conservative people that culturally liberal people don't want to allow them to maintain their preferred mode of behavior even in their capacity as private citizens is a major contributor to the rancor of the culture wars.

July 29, 2004 | Permalink

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The state can't get into deciding what is and is not a sincere religious belief. If we allow religious exemptions to discimination laws lots of people will suddenly turn out to be members of the Church of People Who Aren't Like Me Are Going To Hell. And what's the difference between saying "I'm a Christian, so I'm not going to rent to Joe the Gay Person" and "I'm a Christian, so I'm not going to rent to Khalim the Muslim"?

Posted by: gerf | Jul 29, 2004 12:17:58 PM

There is no difference, which is presumably Matt's point.

I also don't think the sensible argument is in cases of sincere religious belief, rather in any case where the person wants to behave in that way, given that there *is* no objective difference between being a Christian or Muslim and a worshipper of some crazy religion I just made up.

Posted by: john b | Jul 29, 2004 12:22:53 PM

Interesting post, although I don't really see how where you took it relates to the intial post that you quoted.

I'm a gay man, and I don't like it when people personally attack me or treat me as though I'm inferior. But I also don't think that the government should step in and punish a business owner if they want to turn me away because I'm gay. Same goes for blacks, Asians, or any minority. Or, in reverse, if an Asian grocer wishes to turn away a white patron, I would consider that to be an intolerant, despicable act, but I wouldn't want them punished by the gov't. Private sector goings-on should be as gov't free as possible, in my opinion.

Where I think the government *should* be held accountable is when it comes to itself. And that is the major problem I have with how many prominent GOP members have been behaving lately. If, for example, the gov't allows a "right" such as marriage to its nations adults, then it needs to be for *all* adults, not just some. Not for a simple gender reason.

This goes into other issues, but my point is this: the government shouldn't discriminate. It needs to govern itself in such a way that it does not dismantle its own anti-discrimination laws guarding against itself. But when it comes to the private sector, I think all bets all are off.

As long as no one is being physically harmed, I guess it's allowable. I'm *not* saying it's "ok", just that the gov't should nanny its way into the situation.

It's a complicated and heated situation, for sure.

Posted by: Matt | Jul 29, 2004 12:34:13 PM

The mind boggles. What about Jews? Irish? American Indians? Asians? Latinos?

Don't like THOSE PEOPLE, whoever they are? Don't socialize with them. Go to a church where they're denigrated. It's hateful, but it's your private affair.

It's completely different where you're offering a service to the general public, except for THOSE PEOPLE. And a lot of groups have been in that category. It's only been what, 50 years, since the quotas for Jews were pulled from the Ivies? The Japanese Internment Camps?

Let's remember that it's in part tax dollars from THOSE PEOPLE who support the entire system which allows you to do things like use municipal services like water, sewer, roads, courts to enforce the lease, police to call when someone steals from your shop, and so forth. So you're saying that tax dollars from THOSE PEOPLE should go to subsidize a system which says it's ok to discriminate against them? Do they get lower taxes in your model? Or are you going completely libertarian on us -- taxes only for the common defense, public safety, and courts? Oh, wait a second... police protection and courts, part of the public services that people will rely on to enforce contracts, like, say, restrictive zoning covenants, and maybe even to throw THOSE PEOPLE out of their establishment if they don't want them there.

That was a long post, Yglesias, so you presumably thought about what you were writing, but really, what were you thinking?

Posted by: paperwight | Jul 29, 2004 12:38:31 PM

An interesting post, indeed, and one that makes wonder what MY thinks about the Fair Housing Act.
Although I guess he claims it adresses a special circumstance.

I do not like singling gays out as a special kind of minority, for some reason not the equivalent of Blacks, Jews, etc. We allow people not to rent rooms to child molesters or other felons. Homosexuality is not a behavior, even if the discriminators would so assert.

MY mischaracterizes the Religious dispute we are in, which is much more about how communities are defined than about private behavior. The best example of the true nature of the problem is school prayer.

Posted by: bob mcmanus | Jul 29, 2004 12:46:29 PM

"But should a person's sincerely-held religious conviction that his private property ought to be disposed of in a manner that discriminates on the basis of sexual orientation really be prohibited by the federal government?"

Well, yes. You need to spell out in much more detail why you think the civil rights analogy fails - I don't begin to follow. After all, gays can also tell tales of persecution. As recently as the 60s, police would raid gay clubs, publish pictures of the patrons in the newspapers, and they would all lose their jobs. Moreover, many arguments for slavery and racism were based on sincere religious conviction. The Old Testament endorses and regulates slavery, and the New Testament conspicuously fails to condemn it.

Posted by: Mark Barton | Jul 29, 2004 12:52:50 PM

Ok. Let's use Matt's analogy about the private property owner who wants to discriminate in to whom he/she will lease/rent their property.

I can use this, because I've lived it. I'm gay, and once was evicted because the landlord discovered that I wasn't straight. We have regulations (state-level) that govern the rental or lease of residential property to protect people from summary or frivolous evictions. These regulations are needed to maintain stability in the lives and communities of poorer people (those who can't own their own property currently). To say that the protections of racial discrimination in housing (which prevent landlords from evicting or turning away black tenants due to their race) are needed to resolve the 'unique' discrimination history of blacks and should not be extended to protect sexual orientation is to ignore the purpose of these protections TODAY. Some may think land owners should have the right to discriminate in rental or leasing of property, and to them I say that it must be nice to never have to worry about having what happened to me happen to you.

If you're going to provide residential services to the general public, in the interests of stable communities, I believe you should be subject to regulations that serve that end.

Posted by: Ted | Jul 29, 2004 1:24:22 PM

Paperwight makes a strong point. The argument is essentially muddled by the extent to which private actors necessarily rely on portions of the public largesse. So, in theory, Governments my see it fit to enforce anti-discrimination and anti-racism codes (In Canada the Human Rights Code) on quasi-private actors. The legitimacy of a discriminatory claim is tested as to whether it is truly genuine or simply irrational.

MY, however, forwards a countervailing normative argument that anticipates irrationality in the private sphere. Though pornography isn't an imposition to those who "avert their eyes, at times private individuals should be able to make irrational discriminatory choice that cause no substantial injury to the body politic. If it is demonstrably justified that that irrational discriminatory choice is injurious, then, by all means, prohibit it. But who's to make that judgment.

Posted by: Carleton | Jul 29, 2004 1:39:43 PM

Gerf writes:

The state can't get into deciding what is and is not a sincere religious belief.

Actually, this happens all the time in free exercise cases (e.g., prisoners who claim to be members of the First Church of Steak-And-Whiskey-Every-Night).

paperwight writes:

Don't like THOSE PEOPLE, whoever they are? Don't socialize with them. Go to a church where they're denigrated. It's hateful, but it's your private affair. It's completely different where you're offering a service to the general public, except for THOSE PEOPLE.

The flip side here is that pursuing a case for violation of the anti-discrimination law necessarily requires that we permit gathering a great deal of information about the private affairs of the person being regulated. This is problematic in gender discrimination cases -- witness how the Paula Jones case permitted all sorts of spurious inquiries about Clinton's sex life -- and would be equally problematic in sexual orientation discrimination cases. "Your discrimination against my client, Mr. Employer, is a shameful invasion of his sexual privacy. So to prove my case, I'm going to need to ask what kind of porn you watch, so that we can learn whether it involves degrading portrayals of homosexual activity."

Bob McManus writes:

I do not like singling gays out as a special kind of minority, for some reason not the equivalent of Blacks, Jews, etc.

Different kinds of minorities are already treated differently. You can't provide separate "white" and "colored" bathrooms, you can provide separate men's and women's bathrooms. Jewish and Muslim prisoners can demand a special diet in prison; black and Latino prisoners can't.

Ted writes:

To say that the protections of racial discrimination in housing (which prevent landlords from evicting or turning away black tenants due to their race) are needed to resolve the 'unique' discrimination history of blacks and should not be extended to protect sexual orientation is to ignore the purpose of these protections TODAY.

Employment and housing discrimination against blacks is arguably uniquely pernicious because it perpetuates itself across generations: black people who face discrimination today had black parents who faced the same kind of discrimination yesterday.

To state my own position: I don't really have any problem with barring discrimination by major employers and landlords renting multiple dwellings. Extending that rule down to sole proprietors with a single employee and homeowners renting their spare bedroom seems more intrusive than helpful.

Posted by: alkali | Jul 29, 2004 1:41:45 PM

Matt, you are amazingly, astoundingly wrong on this one. Surprising coming from such an intelligent guy.

I'll only point out this. Why do you think it is that 'gay ghettos' exist? There is one in Denver: Capitol Hill. An area where many homosexual people have lived, historically (openly homosexual, that is). Capitol Hill is not a nice neighborhood (not presently -- it was around the turn of the century). It's a mildly tough place for Denver.

Did a larger than average number of gay folks there just love that area? Nope. It just happened to be one of the few places where the apartments were so cheap and the land-owners so uncaring that there was no discrimination by the landowner about an openly gay person living there.

The same thing happens all across America. (It's also the exact same force behind poor hispanic communities and others. It is not the only force -- people form communities, so once a few tenements let in hispanics or gays, others will come to, as it is a place where they will fit in.). This is a good and acceptable thing, huh?

Fuck no. Your freedom to swing your fists ends at my nose. Your freedom to deny other human beings the basic things they need to survive ends at your rental property (among other places). A person needs a place to live.

Posted by: Timothy Klein | Jul 29, 2004 1:43:08 PM

Quite apart from the merits of the case (for anti-discrimination laws), Mr. Yglesias is right to point out that liberal and conservative policies do seek to do something structurally similar: circumscribe private behavior in the name of some greater social good. The (Timothy) Burkean distinction between evil, puritanical conservative Christians and live-and-let-live libertarian liberals just doesn't hold up.

Posted by: Lee | Jul 29, 2004 1:58:28 PM

The flip side here is that pursuing a case for violation of the anti-discrimination law necessarily requires that we permit gathering a great deal of information about the private affairs of the person being regulated. This is problematic in gender discrimination cases -- witness how the Paula Jones case permitted all sorts of spurious inquiries about Clinton's sex life -- and would be equally problematic in sexual orientation discrimination cases. "Your discrimination against my client, Mr. Employer, is a shameful invasion of his sexual privacy. So to prove my case, I'm going to need to ask what kind of porn you watch, so that we can learn whether it involves degrading portrayals of homosexual activity."

What? What kind of straw man is that? You're equating the unbelievably politically motivated Paula Jones inquiry with run-of-the-mill sex and sex preference discrimination cases?

First of all, it's more along the lines of "Mr. Employer, you claim that you fired my client because of poor performance just one week after you learned that he had a boyfriend, instead of a girfriend, yet his performance reviews up to that time were stellar. Can you explain that?"

Second, if, for example, Mr. Employer belongs to the First Christian Church of Gays-are-Icky, that's relevant, and since he's in a lawsuit, so it goes. All kinds of nasty stuff gets dragged out in lawsuits -- that's one of the risks one takes being in business generally.

Posted by: paperwight | Jul 29, 2004 2:02:17 PM

There are two other aspects of Matt's post, which I suspect reflects pragmatic politics more than a libertarian position.

One of Tim Burke's points is that the Social Conservative base of the Republican Party may be as much as 35% of the American population. The last time Democrats forced enlightenment on these folks they switched parties to Republicans. They will passionately resistant ans resentful of attempts at legislating an end to anti-gay discrimination.

Reference the Thomas Frank and outsourcing threads. If we are trying to build a permanent Democratic or progressive majority, we might better approach this subject gingerly.

Me, I vote for civil war, federal troops occupying Dixie for a generation, and reeducation programs. Hey I advocate the same thing for the Middle East! A consistent policy, domestic and foreign!

Just kidding.

Posted by: bob mcmanus | Jul 29, 2004 2:04:07 PM

Timothy Klein writes:

Why do you think it is that 'gay ghettos' exist?

Gay neighborhoods exist in big cities because gay people like to live near other gay people. No Upper East Side landlord is telling gay people, "Your money's no good, here -- why don't you go to Chelsea where your kind belongs."

I would further venture that gay people can tolerate "tougher" neighborhoods because it is more frequently the case that they don't have children, which makes personal safety less of an issue. It's also easier to renovate a fixer-upper if you don't have kids, and living in property as you renovate it is a good way to make money.

Posted by: alkali | Jul 29, 2004 2:05:33 PM

paperwight writes:

What kind of straw man is that? You're equating the unbelievably politically motivated Paula Jones inquiry with run-of-the-mill sex and sex preference discrimination cases?

I picked that example because everyone is familiar with the details. But more mundane sex discrimination cases are frequently intrusive.

Posted by: alkali | Jul 29, 2004 2:08:32 PM

Yes, Mark but refusing to rent someone an apartment or hire them is not the moral equivalent of forcing them to work in your fields, and cutting off one of their feet when they attempt to run off.

Paperweight, could you explain how the stripping of people of their property and putting them in camps (God bless that F.D.R. and Earl Warren), by the state, is the equivalent of a motel owner deciding he doesn't want to use his property to house a gay couple? The motel owner may be a busybody bigot, but he isn't forcing anybody to do anything, nor depriving anybody of their own property.

The reason I can't be a Democrat or a Republican is because both tribes have far too many members who think the legitimate purpose of state power is to prevent immoral, unfair, bigoted, or other unsavory aspects of humanity. I favor laws against murder, rape, robbery, and fraud, not because such actions are immoral, but because society can't function if murderers, rapists, robbers, scam artists are given a free hand. I think most abortions are a moral travesty, but I think society can function when abortions are unregulated, and attempting to criminalize what people decide to do with their bodies is impossible without creating a huge negative effects. Therefore, I oppose criminalizing abortion, or even regulating it significantly.

Similarly, there is scant evidence that society is threatened, or even suffers greatly, when private property owners decide to discriminate against homosexuals. They may or may not be jackasses, but the purpose of state power is not to stamp out jackassery, and if the state heads down that road, well, there is no limit to what humans will be jackasses about, therefore there will be no limit to state power.

Matthew's point about the particular historical circumstances and costs of slavery, and what the the descendents of slaves were subjected to, is well taken; there really is no parallel, in terms of scope and systematic effort by government bodies, with any other group in American society, with the exception of the aboriginal inhabitants of the U.S., and their decendents. However, one of the great ironies of the Civil Rights legislation of the 2nd half of the 20th century is how it stemmed from previous discriminatory action, not by private citizens, but from the state itself, contrary to the law, and how, absent such illegal state action, legislation regulating the behavior of private entities may have been far less necessary.

If reconstruction had not been sidetracked after Grant's presidency (underrated by many, btw) and former slaves and their decedendents not as effectively deprived of their voting, 2nd Amendment (go read about KKK attempts to disarm former slaves and their descendents), property, and other legal rights, if these citizens hadn't been widely threatened with extra-judicial punishment (and not just in the South, btw), by the mid 20th century there may not have been nearly as great a need to regulate the dicriminatory behavior of private citizens. Things
wouldn't have been light and lovely, and counterfactual history is ultimately hopelssly speculative, but it sure would have been nice to know what U.S. society would have looked like in 1960 without a nearly a hundred years of post Civil War state-enforced racial discrimination.

Posted by: Will Allen | Jul 29, 2004 2:14:35 PM

paperwight also writes:

First of all, it's more along the lines of "Mr. Employer, you claim that you fired my client because of poor performance just one week after you learned that he had a boyfriend, instead of a girfriend, yet his performance reviews up to that time were stellar. Can you explain that?"

(And you accuse me of setting up a straw man? Sheesh.)

Second, if, for example, Mr. Employer belongs to the First Christian Church of Gays-are-Icky, that's relevant, and since he's in a lawsuit, so it goes. All kinds of nasty stuff gets dragged out in lawsuits -- that's one of the risks one takes being in business generally.

You're the one who brought up the public/private distinction. If you don't think people have a legitimate interest in their personal and sexual privacy, fine, but that wipes out the rationale for the anti-sexual-orientation discrimination rule you propose. But if the rationale cuts both ways to some extent, then it is worth thinking about whether the benefit is worth the cost, or at least how the rule could be implemented to minimize the cost.

Posted by: alkali | Jul 29, 2004 2:14:37 PM

You know Bob, there's something to be said for being a consistent interventionist. (Actually several things, both good and bad.) Once-upon-a-time-liberal-hawk Josh Marshall has, on more than few occasions, given voice to his daydream that, well, wouldn't it have been nice if General Sherman had been a little more thorough in his "intervention" into Dixie, and the Reconstruction troops a little more, shall we say, invasive in their "re-education" programs?

The social fact, as Timothy put it, of the red-state, socially conservative, religious Bush-base, can pose a stumbling block for even the most careful liberal.

Posted by: Russell Arben Fox | Jul 29, 2004 2:18:11 PM

I don't have an opinion one way or another on whether private-sector opinion against gays should be prohibited, not because I don't care but because it's a tough question. I would point out, however, that those of you who disagree with MY on the civil-rights law agree by implication with his major point: opponents of gay marriage most certainly have every reason to fear that job and housing anti-discrimination laws are likely to follow.

Interestingly, that's not really a valid reason for opposing gay marriage. Opponents of civil rights legislation fretted at the time that demands for affirmative action were sure to follow, and they were right. But that certainly doesn't mean that the original civil rights legislation ought to have been nipped in the bud.

Posted by: son volt | Jul 29, 2004 2:37:00 PM

Due to religious differences with my landlord, I will stop paying rent. I refuse to let some government sanctioned and protected agreement between us allow him to confiscate my hard-earned money. If he doesn't like it maybe he should build an abortion clinic.

Posted by: greyarea | Jul 29, 2004 2:44:23 PM

What are you going to do, grayarea, when you ruturn to the apartment one day, and find you can't get in, and that your belongings have been carted off?

Posted by: Will Allen | Jul 29, 2004 2:58:37 PM

Ladies and gentlemen, I would like to take this opportunity to bring to your attention another group routinely discriminated by landlords of America (and Europe, for that matter): pet owners. This must stop.

I mean, yeah, sure, if anti-gay discrimination becomes a national emergency - millions of gays unable to rent in suburbs get squeezed into inner-city gay-ghettos or something - then, sure, some kind of legal remedy is due. Otherwise, forget it. It's nothing but vanity and wind-chasing.

Posted by: abb1 | Jul 29, 2004 3:01:39 PM

Paperweight, could you explain how the stripping of people of their property and putting them in camps (God bless that F.D.R. and Earl Warren), by the state, is the equivalent of a motel owner deciding he doesn't want to use his property to house a gay couple? The motel owner may be a busybody bigot, but he isn't forcing anybody to do anything, nor depriving anybody of their own property.

(1) The use of state power to oppress a disliked minority is more invidious than the use of private power. I don't think I said otherwise.

(2) The point I was making there, which is something different from the point you seem to think I'm making, is that just because homosexuals are the OK target group of the day, we should remember that it's not all that long ago that people like Yglesias were discriminated against, and in a fair number of places in this country, still are, though it's more discreet.

3) So, help me out here, Will. If a gay person wants to eat at a diner where gay people are not welcome, because the owner is a jackass, can he be arrested by the police for which his taxes paid, tried for trespassing in a court for which his taxes paid, and put in a jail for which his taxes paid? Seems to me that the state's involved in enforcing jackassery and depriving the gay person of his liberty.

4) Similarly, what about courts enforcing no-sale-to-gays property deed restrictions in neighborhoods, just as there were white-only covenants for years? Sounds to me like the state's involved there too, since it's a state-enforced limitation on the rights of certain persons to purchase certain properties.

Posted by: paperwight | Jul 29, 2004 3:02:56 PM

paperweight writes: "we should remember that it's not all that long ago that people like Yglesias were discriminated against, and in a fair number of places in this country, still are, though it's more discreet."

Yes, it was a fine day for America when the rampant discrimination against commentators/bloggers/journalists ended. Although I agree with you, it still goes on in certain corners of the country, often in a subtler fashion.

Posted by: SoCalJustice | Jul 29, 2004 3:13:14 PM

Will Allen writes:

If reconstruction had not been sidetracked after Grant's presidency (underrated by many, btw) and former slaves and their decedendents not as effectively deprived of their voting, 2nd Amendment (go read about KKK attempts to disarm former slaves and their descendents), property, and other legal rights, if these citizens hadn't been widely threatened with extra-judicial punishment (and not just in the South, btw), by the mid 20th century there may not have been nearly as great a need to regulate the dicriminatory behavior of private citizens. Things wouldn't have been light and lovely, and counterfactual history is ultimately hopelssly speculative, but it sure would have been nice to know what U.S. society would have looked like in 1960 without a nearly a hundred years of post Civil War state-enforced racial discrimination.

I know no one wants to argue about counterfactuals. Still, the legislative resources were there during and after Johnson's and Grant's administrations. I do not think that it should be discounted that at that time, with a national healing process begun and some time elapsed, many people were tired of the argument itself. It was easy enough for the white nation to slough off the post-war questions as distracting from the real cause of healing the rift between the grey and bluethe white north and the white south.

Were the legislation to be passed, it would have been passed over the interests and possibly the objections of the nation as a whole, unfortunately. Clearly it was a mistake to not do so. You make it sound (and I may be misreading you) as if the project of Reconstruction failed at the hands of the legislature or executive, but it was certainly the white nation that stopped lost the fire of the cause. This is an important distinction, because a right legislature or executive (granted the blessing of foresight) should have fought apathy and granted benefits to freed men.

Posted by: Kriston | Jul 29, 2004 3:13:15 PM

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