House Passes Equality Act, Extending Civil Rights Law To LGBT Americans

The House has passed legislation that would extend the protections of the Civil Rights Act to LGBT Americans, but it is probably doomed in the Senate.

Late last week, the House of Representatives, on a largely party-line vote, passed the Equality Act, which would extend civil rights protections to LGBT employees at both the government and private sector levels:

WASHINGTON — The House passed sweeping legislation on Friday that would prohibit discrimination on the basis of sexual orientation and gender identity.

The bill, passed 236-173, comes as departments across the Trump administration have dismantled policies friendly to gay, bisexual and transgender individuals, like barring transgender recruits from serving in the military or formally rejecting complaints filed by transgender students who are barred from restrooms that match their gender identity.

“The question before us is not whether the L.G.B.T.Q. community faces outrageous and immoral discrimination, for the record shows that it clearly does,” said Representative Jerrold Nadler of New York, the chairman of the Judiciary Committee. “The question is whether we, as Congress, are willing to take action to do something about it. The answer goes straight to the heart of who we want to be as a country — and today, that answer must be a resounding ‘yes.'”

The legislation, which amends the Civil Rights Act of 1964, prohibits discrimination of lesbian, gay, bisexual and transgender people in both the public and private sectors, offering civil rights protections in businesses, hospitals and welfare services. It explicitly states that individuals cannot be denied access to a locker room or dressing room on the same basis.

The response from the Republican-controlled Senate and White House, however, is likely to be a resounding no.

Citing concern for “the safety of women and girls in intimate spaces” and “conscience protections” in place for medical professionals who decline to perform procedures they find morally objectionable, the administration opposes the measure, according to a draft statement of administration policy obtained by The New York Times. While affirming the administration’s “belief in the dignity of every person,” the draft also cited concerns that the bill could “force schools to teach and affirm sex education that includes self-identified gender identity.”

House Republicans mirrored those fears on Friday. Representative Doug Collins of Georgia, the ranking Republican on the Judiciary Committee, took to the floor to argue that the legislation would harm children and set back the civil rights gains won by women.

“I implore my colleagues to listen to the stories of every stakeholder here, including the transgender girls and boys this bill is meant to help — because we may be hurting them by allowing doctors to prescribe hormones and perform major surgeries on adolescents without parental consent or involvement,” Mr. Collins said.

Since taking office, President Trump’s administration has enacted a sweeping deconstruction of policies and rules intended to protect gay and transgender individuals. In 2017, the Justice Department sided with a cake shop owner who refused to make a wedding cake for a same-sex couple, filing legal briefs arguing that a landmark 1964 civil rights law did not ban discrimination on the basis of sexual orientation. Jeff Sessions, then the attorney general, also rescinded guidance for schools that was intended to protect transgender students in bathrooms and locker rooms.

Similar efforts have been undertaken by other cabinet members. The Department of Health and Human Services spearheaded an effort to establish a legal definition of sex as a biological, immutable condition determined by genitalia at birth, The Times reported last year.

As Dominic Holden at Buzzfeed notes, the right is predictably freaking out over the bill:

The House of Representatives on Friday passed the Equality Act in a historic milestone for the nation’s most comprehensive bill to protect LGBT rights.

The 236-173 vote led by Democrats with sends the measure to the Senate while leading Republicans to predict it will cause catastrophic gender-bending and gut religious exercise. Eight House Republicans voted for the bill.

Hardline conservative commentators claimed the bill will “unleash federal persecution of Christians,” lead to the nation’s downfall, and make the lord “vomit you out.”

Known as H.R. 5, the Equality Act would expand the Civil Rights Act of 1964 along with a handful of other laws that collectively ban discrimination in housing, finances, employment, schools, and public places on the basis of gender identity and sexual orientation.
“No one should lose their job because of who they are or who they love,” House Speaker Nancy Pelosi said in a floor speech, echoing the Democrats’ theme that the law creates overdue parity for LGBT Americans.

If approved by the Republican-controlled Senate and signed into law, which appears unlikely, the measure would elevate LGBT rights to the same status as other classes protected from discrimination, such as race and national origin.

While the GOP spent decades fighting LGBT rights, House Republicans instead focused their arguments against the Equality Act in a kind of concern-trolling, warning that the bill will have unintended consequences — particularly for women and people of faith — rather than explicitly saying that that LGBT Americans shouldn’t be protected from discrimination.

“That’s my problem — not the intent,” said Republican Rep. Doug Collins of Georgia. “It’s about how you go about it.”

The bill would leave little room to discriminate, even in cases of moral objections. Several Republicans were alarmed the bill is exempt from Religious Freedom Restoration Act, a 1993 law that says religious exercise cannot be burdened unless the government has a compelling reason.

“It would allow the government to force its rigid and unyielding fist inside the church,” said Republican Rep. Ross Spano of Florida.

He contended it would encroach on the rights of religious business owners to discriminate against LGBT workers or customers based on their moral objections, saying, “It would deliver a crushing blow to the base of the tree of religious liberty.”

Because the Equality Act bans discrimination based on a person’s gender identity, Republicans said it creates an arbitrary distinction that lets men pretend to be women, threatening women in restrooms.

Opponents claim the bill would give transgender women — who they call men — an unfair advantage in women’s sports and allow children to undergo medically assisted gender transitions without any oversight of parents.

“A vote for this bill is a vote against women,” said Rep. Vicky Hartzler.

The attack repurposes feminist themes from the left and LGBT communities — which have long fought rigid sex stereotypes and gender norms — to portray the bill as a weapon. The criticism also inverts the bill’s most basic frame: Rather than transgender people being the victims of discrimination (transgender people suffer indisputably high rates of bias), transgender people are portrayed as an all-male brigade that subjugates women.

As noted, only eight Republicans voted for the bill:

Eight Republicans in the House sided against their party and with Democrats in a Friday vote on legislation banning anti-LGBT discrimination.

The eight Republicans who backed the Equality Act, which opponents cast as anti-religious freedom, were Reps. Susan Brooks (Ind.), Mario Diaz-Balart (Fla.), Brian Fitzpatrick (Pa.) Will Hurd (Texas), John Katko(N.Y.), Tom Reed (N.Y.), Elise Stefanik (N.Y.) and Greg Walden (Ore.)

Hurd, Fitzpatrick and Katko all represent competitive districts, according to the Cook Political Report.

Diaz-Balart said while the Equality Act — spearheaded by Rep. David Cicilline (D-R.I.) — includes language he doesn’t agree with, he could not vote against legislation that works to further civil rights.

Katko, the chairman of the moderate Tuesday Group, praised the bill for working to bar discrimination based on sexual orientation and gender identity.

“Currently, states have different standards, presenting challenges as employers work to comply with a patchwork of conflicting laws. In New York, this bill is already law,” he told The Hill in a statement.

Stefanik said she strongly supports providing the LGBTQ community with the same protections as other Americans.

“This bill, which is supported by over 200 businesses and the Chamber of Commerce, would ensure those protections remain in place, including employment, housing, credit access, education, public spaces and services, federally funded programs, and jury service,” she said. .

The act is similar to other legislation that has been proposed in the past, including that Employment Non-Discrimination Act (ENDA), which sought to extend the same civil rights protections granted in the Civil Rights Act of 1964 and other legislation to the LGBT community. Those bills were proposed but died in the House due to the fact that the Republican majority felt no inclination to bring the bill to the floor for a vote. In essence, the bill amends the Civil Rights Act to add sexual orientation and gender identity to the category of classes protected by those laws from discrimination in both the private and public sector. This would include not just employment and other issues but would also have series implications for the ongoing battles over the ability of transgender Americans to use the bathroom or locker room that corresponds to their gender identity, especially in public buildings. If passed, for example, it would essentially put an end to the legal battle regarding such issues as they relate to public schools, which has become something of a cause celebre for conservatives who seem to think that people, specifically men and apparently schoolboys, will claim to be transgender so they can get in the same restroom as young girls. It’s an utterly silly argument, of course, but it appears to be the entire basis for the conservative obsession with the gender identity issue.

The passage of this legislation comes just about a month after the Supreme Court agreed to hear a group of cases dealing with the question of whether or not the civil rights laws as they exist now cover discrimination against LGBT Americans. This is an issue that has been resulted in different outcomes in Federal Courts across the country. Most recently, the Second Circuit Court of Appeals ruled that those protections did apply to discrimination based on sexual orientation, a ruling that overruled a prior ruling by a three-judge panel of the same court. Last year, a three-judge panel on the 11th Circuit Court of Appeals held that Title VII did not apply to discrimination based on sexual orientation. To a large degree, the court in that particular case based its ruling on the fact that there was no evidence in the record that banning discrimination based on sexual orientation was within the contemplation of Congress when the Civil Rights Act was passed in 1964. One month after that ruling, though, the Seventh Circuit Court of Appeals ruled in an en banc opinion that discrimination based on sexual orientation was “a form of sex discrimination” and therefore covered by the protections of Title VII. In December, the Supreme Court declined to hear an appeal in the 11th Circuit case. To date, none of the other cases have made their way to the nation’s highest court., The case accepted by the Supreme Court will be heard at some point during the term scheduled to begin in October, meaning that we likely won’t get a decision until some time in 2020. At least in theory, though, the Equality Act, if passed, would short circuit that process.

FILED UNDER: Donald Trump, Law and the Courts, LGBT Rights, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Daryl and his brother Darryl says:

    LMFAO. Republicans want to eliminate Civil Rights; why would they ever add LGBT rights to the mix???
    Hell, Republicans don’t even think women deserve equal rights.
    The only rights Republicans wish to expand are those of single cells, and those of orange grifters.

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  2. Jay L Gischer says:

    The process I’ve observed with regard to trans people is one of ignore-freakout-accept We were always going to be in a freakout stage, I guess. I’d like to get through this as quickly as possible, but I accept that it needs to be there. I mean for me personally there was a stage of “how the heck can that happen?” and I love my daughter dearly. I was very worried that I wouldn’t be able to support her because of my own difficult and conflicted feelings.

    But that all worked itself out. She’s great, I love her, and she’s thriving. I’m glad the House passed this bill. I think a political process here – alongside a legal one – is valuable. I think it’s only a matter of time before we’re through this freakout and into acceptance.

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  3. Arlingtonian says:

    The Equality Act does not simply extend the protections of the Civil Rights Act to gays and lesbians, which would be just fine. It’s not just about gay rights or transgender rights. Indeed, most of its potential applications don’t involve LGBT people at all.

    It radically expands the concept of “public accommodation” to falsely redefine tiny private businesses and non-profits as being subject to lawsuits based on the fiction that they are a public accommodation, even if they have no physical place of business, and never provided a service to the public as a whole. That’s true for not just LGBT bias claims, but other claims as well.

    It also gets rid of religious freedom protections currently allowed by the Civil Rights Act. “UVA law professor Douglas Laycock, who has long supported gay marriage and enacting a federal gay-rights law, says it would ‘crush’ religious dissenters.” The gay legal commentator Walter Olson
    opposes the “proposed Equality Act” because it “would 1) massively expand federal liability in areas unrelated to sex, gender, or orientation; 2) turn 1000s of routine customer gripes into federal public-accommodations cases; 3) squeeze conscience exemptions hard. All are good reasons to oppose.” The Equality Act “goes very far to stamp out religious exemptions,” Laycock tells National Review in an email. “It regulates religious non-profits. And then it says that [the Religious Freedom Restoration Act] does not apply to any claim under the Equality Act. This would be the first time Congress has limited the reach of RFRA. This is not a good-faith attempt to reconcile competing interests. It is an attempt by one side to grab all the disputed territory and to crush the other side.”

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  4. Kit says:

    “It would allow the government to force its rigid and unyielding fist inside the church,” said Republican Rep. Ross Spano of Florida.

    Maybe the fist will do is the favor of ripping out all the American flags it finds hanging there. Religion in this country really is such a tawdry, hateful thing.

    I’m for this bill. These people have my sympathy and my support. That said, please don’t make the next election about toilets!

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  5. Teve says:

    “It would allow the government to force its rigid and unyielding fist inside the church,” said Republican Rep. Ross Spano of Florida.

    I’m not even going to swing at that softball. It would be an insult to my skills.

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  6. DrDaveT says:

    I genuinely can’t fathom the worldview that interprets being prevented from being mean to certain people as ‘persecution’.

    I’m also quite confident regarding what Jesus would say, because he actually said it. Real Christians care about that.

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  7. Hans says:

    The Equality Act should be called the trial-lawyer enrichment act, because it expands the number of businesses and non-profits that can be sued so much. It radically expands the definition of “public accommodation” subject to the Act. Even a non-profit, or a tiny business with no fixed place of business, is subject to the Equality Act if it offers any “service,” or “program,” or “good.”

    All these entities can now be sued (and not just for discrimination against LGBT people). Lawyers, not discrimination victims, will be the biggest winners. In the Brandau case, a lawyer got over $40,000 in court-ordered attorneys fees even though the discrimination victim only got $1. The big winners in discrimination lawsuits are the lawyers, not their clients.

    The Equality Act also eliminates the protections of the Religious Freedom Restoration Act in cases subject to the Act. U.Va. law professor Douglas Laycock, a supporter of gay marriage and workplace protections for gay people, says the Equality Act will “crush” religious freedom. That conclusion is echoed by other commentators like the gay legal scholar Walter Olson and Reason Magazine.

    Why should a wedding photographer be forced to take photographs of a same-sex wedding, when another wedding photographer would be perfectly willing to take pictures of the happy couple, and photography is speech protected by the First Amendment (according to several federal appeals court rulings)? Why would you want a homophobe to take pictures of your wedding anyway?

    Wedding photographers are not generally a public accommodation under the existing Civil Rights Act (although they were defined to be such under New Mexico state law). But they would be considered such if the Equality Act passes, because of its misleadingly broad definition of “public accommodation.” That is a distortion of what a public accommodation really is. Historically, it meant entities like inns and railroads that provided impersonal services to the public at large — not just any tiny business like a wedding photographer whose clientele may be quite limited, and is not physically turning anyone away.

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  8. DrDaveT says:

    @Hans:

    U.Va. law professor Douglas Laycock, a supporter of gay marriage and workplace protections for gay people, says the Equality Act will “crush” religious freedom […]

    Thanks, Hans. I was thinking about engaging in a discussion with @Arlingtonian about why should there be a religious belief exemption for discrimination, but then you very helpfully demonstrated that you are both just drive-by script kiddies with copy-and-paste propaganda payloads, and not actual people trying to engage in discussion. I appreciate you preventing me from wasting my time.

    So, for the audience at large: domestic evangelical ‘Christians’, or Russian trolls? Cast your vote.

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  9. James Pearce says:

    So when the applause dies down, then what?

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  10. Arlingtonian says:

    @DrDaveT:

    I am an atheist who lives in Arlington, Virginia, not an “evangelical Christian” or “Russian troll.” The folks I cited criticizing the proposed Equality Act for being extreme are neither Russian trolls, nor right-wing fundamentalists. The first person I cited, Douglas Laycock, is a mostly liberal law professor at U.Va.; the other is a gay legal commentator who runs the world’s oldest law blog, Overlawyered, and who publicly advocated passage of Maryland’s law legalizing same-sex marriages.

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  11. Gustopher says:

    One of the arguments against impeachment is that the Senate will never convict, and that it’s just a waste of time.

    Meanwhile, the House is using its time to pass bills that will never get taken up by the Senate, and which barely make a dent in the news cycle. It’s not even a bill that the Republicans in the House would find difficult to oppose, because their base opposes this — I get that forcing votes on things that will lead to campaign commercials of the “Congressman X voted against petting puppies” is worthwhile.

    But I don’t see this as a better use of the House’s time than starting impeachment proceedings would be.

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  12. Daryl and his brother Darryl says:

    @Hans:

    Why should a wedding photographer be forced to take photographs of a same-sex wedding, when another wedding photographer would be perfectly willing to take pictures of the happy couple?

    LMFAO.
    Why should lunch counters in the south be forced to feed them negroes, when another lunch counter on their own side of the tracks would be perfectly willing to feed them negroes?
    Bigots are, by definition, ignorant.

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  13. Gustopher says:

    @Arlingtonian: and yet, you are making the exact same arguments as @Hans, citing the same obscure sources.

    Where did you hear of Laycock and Olsen? They aren’t household names… You and Hans are obviously working off the same source material — why not link to it, block quote the relevant passages, and add your own comment (even the fabled “indeed”), rather than formatting it to suggest that it’s your own original thought?

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  14. grumpy realist says:

    …where did the trolls come from?

    ….nice for you to show so blatantly that you’re just copy-and-pasting talking points from some third party. Probably in an attempt to derail any conversation, since there’s no way you could actually participate in any analysis one of our legal eagles could make of your stuff….have you even read any of the cases you are so blithely throwing around, or are you just regurgitating something produced by a Liberty U. “graduate”?

    Do you guys get paid in vodka?

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  15. Arlingtonian says:

    @grumpy realist:

    I didn’t copy anyone’s “talking points.” I quoted law professor Douglas Laycock, one of America’s leading constitutional law professors. He is the Robert E. Scott Distinguished Professor of Law at the University of Virginia.

    The quote from him criticizing the Equality Act can be found at this link:

    https://www.nationalreview.com/2019/05/law-professor-explains-why-the-equality-act-would-crush-religious-dissenters/

    Laycock graduated from the University of Chicago Law School — one of the top five law schools — not “Liberty University.” He is not a conservative, or opponent of gay marriage, either.

    I also quoted Walter Olson, a graduate of Yale University. Olson is the author of four books about the legal system, and has been described by the Washington Post as an “intellectual guru of tort reform.” Olson is credited with influencing the Supreme Court’s Twonbly decision broadening courts’ ability to grant Rule 12(b)(6) motions to dismiss, and refashioning what is needed to state an antitrust law claim. Olson is gay, not a social conservative, and he did not attend Liberty University.

    You can find Olson’s criticism of the Equality Act using Google.

    The fact that some comment posted AFTER mine echoes what I said does not me guilty of repeating “talking points.” A comment is not canceled out by a later comment that agrees with it.

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  16. drj says:

    @Arlingtonian:

    He is not a conservative

    Laycock is a Federalist Society contributor. Olson is a senior fellow at the Cato Institute.

    But I guess it was too much trouble to mention that.

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  17. Arlingtonian says:

    @drj:

    So what? Neal Katyal, Obama’s Acting Solicitor General from 2010-2011, is also a Federalist Society contributor. The moderately liberal Supreme Court Justice Steven Breyer has spoken at the Federalist Society. The Federalist Society invites liberals like Professor Laycock to speak at its functions, often for the sake of ideological balance.

    In short, the people I cited criticizing the proposed Equality Act (Professor Laycock and Mr. Olson) are respected, well-known legal commentators (and influential ones as well, in terms of affecting courts’ jurisprudence).

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  18. An Interested Party says:

    It also gets rid of religious freedom protections currently allowed by the Civil Rights Act.

    God forbid that people shouldn’t be allowed to use religion to practice their bigotry and prejudice…

    Why should a wedding photographer be forced to take photographs of a(n) same-sex wedding interracial wedding, when another wedding photographer would be perfectly willing to take pictures of the happy couple, and photography is speech protected by the First Amendment (according to several federal appeals court rulings)?

    Why indeed…

    So when the applause dies down, then what?

    Then your vapid comments will still be available for all to see…

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  19. Modulo Myself says:

    @Arlingtonian:

    Their criticisms are pretty lame. You can’t discriminate against women and yet the Catholic Church and Quiverfull weirdos continue to celebrate masculinity in all of its bigoted dumbness. I’m sure gay people getting the same rights as women would allow for even more profound formulations of traditional religious values to dissent in their shitty little ways.

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  20. DrDaveT says:

    @Arlingtonian:

    The fact that some comment posted AFTER mine echoes what I said does not me guilty of repeating “talking points.”

    OK, let’s take that at face value, and assume that Hans is the clone.

    So, why should one’s religion be an acceptable legal basis for discrimination? If my religion teaches that redheads are the spawn of Satan, should that give me the legal right to treat them like dirt? If my religion teaches that Christians are heretics, should that give me the legal right to refuse their custom or deny them services?

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  21. Kylopod says:

    I decided to look up Douglas Laycock. While he indeed claims to support SSM and anti-discrimination laws, he has frequently sided with the opponents on “religious freedom” grounds. Among other things, he spoke for the defense in the baker case. In other words, he’s the Alan Dershowitz of LGBT issues.

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  22. Gustopher says:

    @DrDaveT:

    So, why should one’s religion be an acceptable legal basis for discrimination? If my religion teaches that redheads are the spawn of Satan, should that give me the legal right to treat them like dirt? If my religion teaches that Christians are heretics, should that give me the legal right to refuse their custom or deny them services?

    I know you’re just trying to score easy points against the weird daily-talking-points guy, but that’s actually a very good question turned around — why shouldn’t you have a right to not serve brown people, gays or redheads?

    There’s a fundamental conflict between a right to association and public accommodations. It’s plausible that had “separate but equal” actually been implemented to be equal, or remotely close, the Supreme Court would have balanced this conflict differently. But, it was implemented so unequally that there could be no remedy to fix the implementation.

    So, why can you not discriminate? Because bigots don’t act in good faith.

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  23. KM says:

    @Gustopher:

    There’s a fundamental conflict between a right to association and public accommodations. It’s plausible that had “separate but equal” actually been implemented to be equal, or remotely close, the Supreme Court would have balanced this conflict differently. But, it was implemented so unequally that there could be no remedy to fix the implementation.

    Plausible does not mean it’s possible. Not to excuse the racists but you really can’t treat whole classes of folks completely differently and *not* have it end up being visibly unequal in some fashion. For example, take minors – the legal system is designed to treat them differently in order to protect them but it ends up severely limiting their rights as citizens in the process. We accept this inherent unfairness because the overall benefits to children as a class outweigh a few teenagers getting pissy they’re a few months shy of majority and can’t drink.

    Society simply cannot function if the negatives outweigh the positives. Freedom of association is in it’s essence a far more important right in a democracy then religious accommodations – association covers more ground and people then a handful of individuals deciding to interpret their “beliefs” to suit their own need. In America, we’ve all be trained to accept “religion” as a valid excuse for bad behavior because it’s baked into our national mytho. However most religious dogma doesn’t actually say what the bigots try to use it for (see anti-vaxxers trying to claim it’s against their faith… somehow). It’s become the hammer in search of a nail and misses the Founder’s point – it’s protection for you from the government, not you using the government so others end up needing protection.

    Quite frankly, the government doesn’t owe you cover to hate on people. You are required to do your job and leave your baggage at the door – the definition of professionalism this nation seems to have forgotten. You don’t want to serve someone or deal with them? Then why the hell are you in a job where that might be a factor? Don’t want to make gays wedding cakes – don’t make wedding cakes or do wedding crap. Don’t want to hand out contraception or abortion pills? Don’t be a pharmacist.

    Discrimination by its very nature cannot be in good faith – you are literally sorting folks into acceptable / not acceptable categories with the intent to inflict negativity on the not acceptable. There’s no positive intent towards them like with my minors example since all the positive is directed towards the acceptable. No benefits offers, no boons balancing out or outweighing the loss – the discriminated are told to get out, get over it and go somewhere else with nothing to show for it. Religious accommodations are very much one-way transactions and thus should not be favored over public accommodations which are designed for maximum access and benefits to all.

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  24. DrDaveT says:

    @KM:

    However most religious dogma doesn’t actually say what the bigots try to use it for

    Keep in mind that for a large fraction of American ‘Christians’, there is no (official) dogma beyond what their local preacher spouts from the pulpit. The American evangelical tradition went all in on the “priesthood of the believer” (i.e. individuals do not need someone else to interpret scripture or doctrine for them) and the independence of each congregation. Mainstream denominations that assert a central doctrinal authority (Catholics, Episcopalians, Lutherans, Presbyterians, some Methodists) have been losing members to a combination of schism and exodus for centuries now. Even the Southern Baptists, whose positions are allegedly non-binding on individual congregations, have pissed off enough people to notice the loss.

    …which is to say that any personal beliefs about anything can be “religious beliefs” if a congregation of like-minded bigots decides they are. If my local preacher preaches that red hair is the Mark of Satan and that such people should be shunned, I can claim that’s just as sincere a religious belief as the contents of a Papal Bull. Ditto for any extreme of misogyny, racism, homophobia, xenophobia, or science denial that you care to name.

    Funny how the people who adamantly defend “religious freedom” exemptions from law don’t think they should extend to female genital mutilation, or animal sacrifice, or purdah. If you push on why they admit any exceptions, it always comes down to opinions about which religion is correct, not any kind of theory of church vs. state demarcation.

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  25. Kylopod says:

    @DrDaveT:

    Funny how the people who adamantly defend “religious freedom” exemptions from law don’t think they should extend to female genital mutilation, or animal sacrifice, or purdah.

    Heh, Douglas Laycock actually did defend the religious right to animal sacrifice. No, really.

  26. DrDaveT says:

    @Kylopod:

    Heh, Douglas Laycock actually did defend the religious right to animal sacrifice.

    Good for him; that’s at least marginally less hypocritical than most. The fact remains, though, that there are gen-u-ine world religions out there with teachings that are utterly incompatible with US concepts of human rights, personal freedom, etc. The difference between allowing Type-23 Christians to discriminate against gays and allowing Type-47 Muslims to own women as property (and allowing Type-117 Mormons to force underage girls into plural marriages) cannot be drawn on the basis of religious freedom, because the degree of religious freedom is identical in those cases. And once you admit that other considerations outweigh religious freedom in some of those cases, you have admitted that those other considerations always outweigh religious freedom.

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  27. DrDaveT says:

    @KM:

    Discrimination by its very nature cannot be in good faith – you are literally sorting folks into acceptable / not acceptable categories with the intent to inflict negativity on the not acceptable.

    Let me push back slightly on this. Society does discriminate in ways that we all generally agree with — it locks up people convicted of violent crime; it says who may or may not operate a motor vehicle on a public road; it asserts that some people can give informed consent for sex and others cannot; etc. All of those are ‘discrimination’ of various kinds.

    The question of when discrimination is socially acceptable is complicated, and reasonable people can reasonably disagree. We see this all the time in smaller ways in (for example) debates over what should be the age at which ___ is now permitted, or which professions cannot be practiced without a professional license from an accredited licensor. “Which personal characteristics of people should be forbidden as a basis of discrimination?” is a hard question.

    That said, there is still a huge difference between believing that gays should not be allowed to teach children (because corruption of youth), and believing that it’s ok to deny service to gays in your business (because icky). I don’t agree with either, but the former can be addressed with evidence and argument while the latter cannot.

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  28. Monala says:

    @Jay L Gischer: Very sad that two people would downvote your expression of love and support for your daughter.

  29. Monala says:

    @DrDaveT: Let me push back in response. Your examples are all behavior-based, not identity-based. Anyone, no matter their race, gender, sexual orientation, religion, etc., can commit a violent crime, and experience consequences based on that behavior (ignoring for a moment, the inequalities in our justice system). Anyone can commit a DUI and lose their license or right to drive. Anyone can become intoxicated and no longer be able to consent to sex. All of these losses of rights or privileges are based on behavior. The civil rights argument is that there should never be an identity-based reason (apart from a few exceptions, such as minors) to deny anyone rights or public accommodations.

  30. DrDaveT says:

    @Monala:

    Your examples are all behavior-based, not identity-based.

    Being less than N years old, for various values of N, is not behavior-based — as you yourself note. “Apart from a few exceptions” means that no, these are not all behavior-based.

    That said, you have identified a key part of the debate — is being homosexual an identity, or a behavior? Is being a pedophile an identity, or a behavior? Is being a Muslim/Christian/Atheist an identity, or a behavior?

  31. Monala says:

    @DrDaveT: I didn’t address the age issue because I think KM already did so effectively, by pointing out that the important value of protecting children outweighs the restriction of their rights. She also made the great point that in contrast, most of these discriminatory laws don’t do anything positive for the group being discriminated against, unlike the example of statutory laws that restrict the rights of kids (from driving, drinking, not attending school, etc.).

    However, all your earlier examples are about behaviors, not identities: violent crime, DUI, intoxication. And your final paragraph of your most recent comment is disingenuous. Sexual orientation and religion are identities. People can engage in behaviors based on those identities (such as having gay sex, or attending a worship service), but those identities don’t cease to exist when they’re not engaged in those behaviors. Furthermore, an important question about the behaviors is whether anyone else is harmed by it. Gay consensual sex in the privacy of one’s bedroom does not, and attending a house of worship does not, but acting on pedophilic desires clearly does.

  32. DrDaveT says:

    @Monala:

    Sexual orientation and religion are identities.

    I was raised in a religion that explicitly rejects the second half of that, and indeed would say that there is no point at all to a religious belief unless it is a free choice — a behavior — and not intrinsic. I was taught that children do not belong to any religion, precisely because they are not yet competent to make informed choices. As a result, to me religion was already different from (say) race or gender, for exactly the reasons you are pointing to for sexual orientation.

    Given that people can and do experience religious conversions, I don’t think there’s any coherent way to argue that religion is ‘identity’ in the way ancestry and gender are. That’s part of why I don’t believe legal deference on the grounds of religious belief is ever warranted — unless you’re ready to permit the same kind of deference for philosophical positions that do not assert any supernatural or divine origin.

  33. DrDaveT says:

    @Monala:

    I didn’t address the age issue because I think KM already did so effectively, by pointing out that the important value of protecting children outweighs the restriction of their rights.

    Let me note as an aside that exactly this argument was put forward as a justification for racist and sexist laws, for centuries. “We can’t let women vote because we need to protect them from the inevitable consequences of their own emotionalism and lesser intelligence.” Paternalism is not restricted to the treatment of the young, and (again) reasonable people can reasonably disagree about when paternalism is justified and where the lines should be drawn. It’s not just children (with the corresponding thorny issue of who is a ‘child’ for a given legal purpose) — it’s also the mentally ill, the intellectually deficient, the ignorant, the physically disabled, … none of which are ‘behaviors’ in your taxonomy.

  34. Monala says:

    @DrDaveT: I see your points, but think we’re parsing these definitions differently. As I see it, something doesn’t have to be inborn to be part of your identity. A conversion experience might be a behavior, but once someone has converted, that’s now part of who they are. (Not to mention, not all religions have conversion moments. Many of them do define membership as being born into the faith).

    I do agree with you that religion shouldn’t be given legal deference. But again, I think we’re talking about two different things: I don’t think someone’s religious beliefs should give them the right to discriminate against someone else, but I also don’t think someone’s religious beliefs should make them the victim of discrimination.

    I do think your second point is also an important one for discussion: when should someone’s status result in the restriction of their rights? I think about some of the questions that come up today about whether someone can have a mentally ill family member committed if they believe that person is at risk of harming themselves or others. ETA: as I rethink this, the question is also not about one’s status as mentally ill, but about behavior (causing harm to oneself or others). The challenging part about this issue is that we’re talking about potential harm, and whether someone can be restricted based on that.

  35. DrDaveT says:

    @Monala:

    I see your points, but think we’re parsing these definitions differently.

    Fair enough. Thank you for continuing the discussion; it is helping me figure out what I actually believe.

    As I see it, something doesn’t have to be inborn to be part of your identity.

    I am extremely wary of the slippery slope that comes into play when you allow sufficiently strongly-held beliefs to be part of ‘identity’, no matter how irrational or hateful or destructive they might be. I’m not willing to draw the line between identity and behavior if being a fervent Nazi can be ‘identity’.

    More generally, I am inclined to draw the first line between “things you can’t practically change about yourself” and “things you can”. That’s imperfect, for a couple of reasons — for example, I’m pretty sure that most serial pedophiles have no ability to change that about themselves, but I certainly want to discriminate against them.

    Here’s a less fraught case: to what extent is it ethical to discriminate against the uneducated? It’s a perfectly legal basis for (say) hiring discrimination, regardless of whether the person in question is uneducated due to circumstances of birth or uneducated due to lack of intelligence or uneducated due to laziness or general lack of intellectual curiosity. But I see a difference there — in your terms, I would say that circumstances of birth and innate stupidity are ‘identity’, while laziness and lack of intellectual curiosity (not associated with circumstances of birth) are ‘behavior’. (Is that fair? I’m not sure. The line is clearly fuzzy.)