The Free Market 14, no. 1 (January 1996)
Once again, a national gay rights bill is before Congress, with the difference that, this time, it has President Clinton’s endorsement. For the first time, an American President has put the power and prestige of his office behind a gay version of the 1964 Civil Rights Act, to outlaw discrimination against homosexuals in housing, employment, and public accommodations.
The whole gay rights debate has, by now, gotten so tiresome that most Americans, even liberals, wish the “love that dare not speak its name” would shut up. But the gay lobby has plenty of bucks, a narrow focus, and is easily offended, a combination that keeps candidate Clinton hopping.
The gay movement used to claim it wanted the government to leave them alone. Now they want government to actively intervene on behalf of themselves as an oppressed minority, while calling for the expansion of state power over nearly every aspect of our lives. The government has become the gay movement’s agent of liberation.
Although the gay issue is usually classified as socio-cultural, this law would have large economic consequences, inspiring more costly lawsuits against small businesses and denying to employers and employees, landlords and tenants, the right to freely associate.
When California Sen. Dianne Feinstein was a San Francisco city supervisor in 1972, she introduced legislation that forbade city contractors from discriminating against gays. But she also asked gay groups what the limits were. “Does this mean that contractors have to hire men who wear dresses?” she famously asked.
Of course not, was the stock reply, followed by displays of indignation at the invocation of a “stereotype.” As a Senator who now advocates a national civil rights bill for gays, even her question has proven prophetic. In 1995, the city Board of Supervisors voted to outlaw discrimination against “transgender” people. Today, the answer to the question of whether city contractors have to hire men in dresses is a triumphant “Yes!”
A similar path awaits us on a national scale if a gay rights law is enacted. Property rights will be further trampled and private employers will find themselves entangled even further in a regulatory/quota mire, forced to subsidize increasingly bizarre claims of would-be and terminated employees.
The gay rights lobby says that this wouldn’t happen. Let’s look at their main arguments.
1. Gays are like blacks, Latinos, Asians, women, and others against whom discrimination is now illegal: they are a group with a long history of discrimination, and are therefore entitled to special protection.
Due to a culture in which Bisexual S&M Lesbians of Color is considered a victim group rather than a diagnosis, it is necessary to point out that homosexuality is a behavior. As such it is sometimes not readily apparent, unless a potential job interviewer is also a mind reader. Homosexuality can be kept secret, and often is, for a wide variety of reasons.
In order to experience true “discrimination,” a gay job applicant, for example, would have to walk into the job interview and proclaim his homosexuality: “I’m gay; any questions?” If a civil rights law were passed, not to hire this person would be an actionable offense. People who lack any other identifiable victim trait might try this technique, while in-the-closet gays would feel like suckers for not coming out.
2) Gays are economically oppressed, and often lose out on job opportunities due to their homosexuality.
All evidence suggests otherwise. Go to the gay residential neighborhood of any major city, and what do you see? Not the decaying slum of an economically oppressed victim group, but restored Victorian homes and well-dressed, prosperous-looking people with plenty of money to spend at the upscale shops. The median income of gay couples is well above their heterosexual counterparts, some $45,000 plus, depending on how you measure it.
According to current interpretations of the 1964 Civil Rights Act, those entitled to special protection from the federal government in housing and employment must, first of all, show evidence of a lack of ability to obtain an average income. As a corollary to this, they must lack equal access to adequate education or cultural opportunity.
The proposed victim group must exhibit obvious distinguishing traits, which are innate, immutable, inherited, or ethno-religious. Aspirants must somehow prove their political powerlessness—that they are politically disenfranchised and without equal access to the political process, such as voting rights, the right to run for office, etc.
The gay community meets none of these criteria. If some gays now wish to be considered an ethnic group instead of an exotic fraternal order in the tradition of the Knights of Malta, they are going to have a hard time convincing Americans of their deprivation. Nor do gays lack education or cultural opportunity. In large cities, non-gays would sooner qualify as victims by this standard.
As for powerlessness, the contention is laughable. Acting in concert, gays wield tremendous power, a power whose source is not only lots of money but also far-reaching social influence. Among the top givers to Democratic candidates, the gay lobby wields its power openly; and now, in the Republican Party, the same is occurring via the media darlings of the Log Cabin Federation.
What is frightening about this so-called gay rights movement is not only its power, but its fanatic persistence and perpetual complaining. Even after Robert Dole publicly recanted and decided it was wrong to have returned the gay Republican contribution, Log Cabin Federation director Rick Tafel went on national television kvetching that Dole’s views are “not clear.” This combination of touchiness and clout is shared by few others in Washington.
3. Gay rights laws will not lead to quotas.
In his message of support, President Clinton is quick to point out that the legislation “specifically prohibits preferential treatment on the basis of sexual orientation, including quotas. It also does not require employers to provide special benefits.”
In the first place, in a free economy, employers should have the freedom to discriminate in favorof gays with preferential treatment, quotas, or by installing an all-gay work force if they so desire. Similarly, employers should be free to impose a no-gays-allowed policy. Thus Clinton’s reassurances fail by the standard of a free economy.
Civil rights brings about forced hiring and employment over voluntary association, and special preferences are the inevitable result. If business can’t discriminate, for example, they would have no basis for denying spousal health insurance to gay couples. In American law, “equal protection” is indistinguishable in practice from victimological entitlement. Once a group is admitted to the Pantheon of the Oppressed, there is no limit to the claims it can make on the freedom and property of others.
The perception of discrimination is necessarily subjective. Complicating matters, sexual proclivities can be less apparent than other characteristics. So how would a gay civil rights law be enforced? We would have to count the number of declared homosexuals in a given company or agency to make sure they are proportionally represented. Maybe businesses will have to give bonuses to employees who declare themselves gay when the EEOC comes around to inspect.
Remember, too, that gays (mistakenly) believe they constitute 10% of the population. If a gay civil rights law goes the way of similar laws, that means that 10% at every level of the firm, from maintainence to upper management, must be gay. Inevitably, there would be reverse discrimination suits filed by non-gays against gay-managed firms.
The result will be more regulatory tangles, lawsuits, social division, government coercion, labor costs, economic inefficiency, and growing levels of suspicion between employees and employers, not to mention widespread hatred between gays and non-gays. That such a law is even being contemplated shows that we’ve learned nothing since the great mistake of 1964.
