The Volokh Conspiracy

Washington Metro Board Member Dismissed for Anti-Gay Remarks in Same-Sex Marriage Debate:

The Washington Post reports:

Maryland Gov. Robert L. Ehrlich Jr. yesterday fired Robert J. Smith, his appointee on the Metro transit authority board, for referring to gay people as sexual deviants on a cable television show.

"Robert Smith's comments were highly inappropriate, insensitive and unacceptable," Ehrlich (R) said in a statement less than five hours after the controversy erupted during a Metro board meeting. "They are in direct conflict to my administration's commitment to inclusiveness, tolerance and opportunity." ...

Smith acknowledged after the meeting that he had referred to homosexuals as "persons of sexual deviancy" during a political round-table discussion on a Montgomery County cable show that was shown on Sunday.

"Homosexual behavior, in my view, is deviant," he said. "I'm a Roman Catholic." ... "The comments I make in public outside of my [Metro board job] I'm entitled to make," he said. His personal beliefs, he said, have "absolutely nothing to do with running trains and buses and have not affected my actions or decisions on this board." ...

The Metro directors oversee a $1 billion operating budget and nearly 10,000 employees. They set policy for the nation's second-busiest subway and fifth-busiest bus system....

Smith said he has been a regular panelist on the weekly political round-table show, "21 This Week," telecast on Access Montgomery cable Channel 21, for the past 12 years. He appears as a "Republican activist," according to Rodney Bryant, the show's producer.

On last weekend's show, Smith interrupted another speaker who was talking about federalism and Vice President Cheney's daughter. The speaker said Cheney's daughter, who is a lesbian, would not want the government interfering in her life, according to a recording of that portion of the show.

"That's fine, that's fine," Smith interrupted. "But that doesn't mean that government should proffer a special place of entitlement within the laws of the United States for persons of sexual deviancy."

It seems like Smith is the sort of high-level political appointee who can be fired for his speech -- including off-the-job speech on matters of public concern -- with no First Amendment constraints, and with no requirements that the government show any likely disruption that would be caused by the speech. (See generally Elrod v. Burns and Branti v. Finkel, which arise in the slightly different but closely related area of dismissal based on political affiliation.) And I think the Governor's decision may well have been quite sensible, not just as a matter of politics for the Governor but as a matter of public relations for the metro system and for Maryland government more generally.

Nonetheless, it seems to me that this shows that the gay rights movement -- which in many respects I support -- has indeed led, and is likely to continue to lead, to nontrivial burdens on people who hold and express traditional religious views that condemn homosexuality: Here, the firing from a government job that really does have relatively little to do with gay rights matters; in other cases, dismissals by private employers for anti-gay speech; in other contexts, burdens on religious institutions' ability to refrain from assisting conduct (for instance, adoption by same-sex couples) that they think is morally improper; in still others, the exclusion of the Boy Scouts and other groups that discriminate based on sexual orientation in the course of trying to convey their anti-homosexuality message (something that I've argued is a constitutionally permissible burden, but a burden nonetheless).

These burdens might well be justified. Also, on balance they are far less than some of the burdens that gays have had to labor under in the past (such as the threat of prison time for their sexual behavior), and are likely less than even the burdens that gays have to labor under today (such as the threat of being fired for their sexual conduct, in some states prohibitions or restrictions on adopting children, the inability to get permanent residence and U.S. citizenship for one's life partner when heterosexuals can get this important benefit as a matter of course, and so on).

Nonetheless, it seems important to recognize that unfortunately the securing of greater rights to some leads to (not inexorably, but practically) the decrease in the rigths of others. And it helps us understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the "It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?" variety. The broad gay rights movement, which goes beyond just demanding freedom from legal punishment for homosexuality and equal access to public benefits, does intrude (whether justifiably or not) on others' business, and resisting the movement then in turn becomes those other people's business.

Thanks to reader Mike Chittenden for the pointer to the newspaper article.

Arvin (mail) (www):
Sure it makes sense that anti-gay people will fight gay people on their rights. Just like it made sense that racists fought blacks when they demanded their equality. Now that blacks are generally accepted as equals, it becomes uncouth to call them derrogatory names. So people who think blacks are unequal had business trying to stop the idea that blacks were equal.

But how is any of this relevant? The racists were wrong then, and the anti-gay people are wrong now. I don't think it's "unfortunate" at all that it's becoming socially unacceptable to say insensitive things about gay people, as long as it's still legal to do so.
6.16.2006 1:28pm
M (mail):
If he'd said something like, "my religious belief is that homosexual practices are immoral and forbidden by God's law" and was still fired I'd find it more troublesome. As it is his expression wasn't just one of religious belief but of disgust or at least significant disdain, and not one required by his beliefs. While it may be burdensome to keep one's bigoted views to one's self if one is public official it certainly doesn't seem to be an unreasonable burden, especially as long as there are un (or at least less) offensive ways to state one's personal beliefs.
6.16.2006 1:39pm
UCLA Law Alum:
But, see, Arvin, I think that Eugene's point is that this imposes a burden upon the religious expression of a group of people.

Let's say that there were a fairly major religion that still practiced ritual animal sacrifice- suppose, for example, that the highly ritualized Spanish bullfights (the ones were they die, not the Portuguese ones with velcro spears and whatnot). The animal is repeatedly stabbed and left to slowly bleed to death before being killed in such things, which are televised both in Spain and wider Europe- I've watched them on RAI Uno in Italy before.

Such things are, in large part, entirely socially unacceptable in the present United States- with good reason, too. That, however, does not negate that this social unacceptability, to the point of the loss of livelihoods, imposes a significant cost on individuals who feel morally bound to the "Matador Mysteries" or whatever this religious practice would be called.

Recognizing that this rising social unacceptability could, in fact, demand of adherents that they surrender their morals or their life, is not, in my view, a bad thing- rather it is simply being thorough before one makes a balancing judgment as to further extension of certain rights.

Please note too that I attempted to select a deepseated historical example for this, to avoid the problem of new "religions" like the World Church of the Creator, which exist entirely as a vehicle for some form of discrimination.
6.16.2006 1:42pm
Bob Bobstein (mail):
I don't doubt that the points Prof. Volokh makes are valid-- with greater acceptance of and consequent legal protection for previously disadvantaged groups comes a corresponding drop in the ability to express dislike and disapproval, and to act on that animus.

That said, the two examples he offers are not very convincing, because both deal with limitations in taxpayer support for anti-gay groups, not with any punishment of anti-gay groups.

The "burdens on religious institutions' ability to refrain from assisting conduct (for instance, adoption by same-sex couples) that they think is morally improper" must refer to the decision by a Catholic group in Mass. to stop placing kids for adoption because it could no longer both receive public funding and discriminate against gay couples.

The "exclusion of the Boy Scouts" is about denying subsidies in the form of free-of-charge access to public facilities.

I don't disagree that more equal legal treatment of gays makes it harder for anti-gay groups to discriminate, but is there anything more nefarious going on than denying public funds to discriminatory groups?
6.16.2006 1:58pm
Caliban Darklock (www):
Another point I have difficulty reconciling is that this represents a very strange sort of slippery slope. If I can't express my negative opinion of a group, then the only opinions that can be expressed of that group are necessarily positive or neutral. If we continue to extend this practice to more and more groups, eventually it could become effectively illegal to criticise anything.

Furthermore, I think it is rather critical to establish once and for all whether homosexuality is a choice or a circumstance of birth before we set a precedent on how it is to be treated. I agree that adults should be entitled to marry whomever they choose, but I'm very concerned about the choice aspect of that. If we can't establish that homosexuals have an unimpaired freedom of choice in this matter, I don't think this precedent needs to be set.
6.16.2006 1:59pm
Duncan Frissell (mail):
Eugene,

You're an intellectual deviate. Your intellectual behavior differs from the norm.

Libertarians are political deviates. Their views deviate from the norm.

Does that mean I get fired?
6.16.2006 2:00pm
Steve:
"people who hold and express traditional religious views that condemn homosexuality"

You misspelled "fundamentalist," Professor.
6.16.2006 2:10pm
trotsky (mail):
As the esteemed host notes, nobody has a "right" to hold a politically appointed job. Case closed.
6.16.2006 2:11pm
logicnazi (mail) (www):
Uhh, the growing acceptance of gay rights hardly imposes any more burdens than were there before. I suspect if you go back 15 years that someone voicing a religious belief that homosexuals are perfectly upstanding members of society who should be provided equal rights you would lose your job just the same (if not go back further).

This sort of thing happens all the time with every hot button issue. Most political appointees would lose their jobs for saying, 'we should have more abortion' or even the seriously debated claim, 'abortion is effective in reducing crime'. Though most of the people who have these beliefs do not have them as part of an organized religion these beliefs occupy a similarly foundational moral role and effectively amount to these people's religious beliefs and some people do have these beliefs as part of small religious communities out here in california.

I can come up with tons of examples of religious beliefs whose statement would get you fired. The only difference between this situation and those situations is that there are more people who have these particular beliefs. Yet the fact that a group is large and politically powerful should mean protecting their 'rights' is less important (they can look out for themselves) nore more!
6.16.2006 2:18pm
Jamesaust (mail):
I believe error results from the initial misassumption. The gentleman in question was not fired for expressing, in slightly uncouth terms, his personal religious beliefs about homosexuality. He, who apparently serves "at the pleasure" of the Governor, was fired because his expression, especially his choice of expression, brought disrepute to his boss, the Governor.

Is it a "news" item that if you embarrass your employer with gratuitous expressions of your personal views that you can be fired? If the President's speechwriter appeared on the Tonight Show and tossed in some opinion that Jews run and manipulate the world would anyone be surprised that the writer the next left "to pursue other interests"?
6.16.2006 2:26pm
Erin Arlinghaus:
Bob Bobstein:

<blockquote>
The "burdens on religious institutions' ability to refrain from assisting conduct (for instance, adoption by same-sex couples) that they think is morally improper" must refer to the decision by a Catholic group in Mass. to stop placing kids for adoption because it could no longer both receive public funding and discriminate against gay couples.

</blockquote>

No —- the ban in Boston on discrimination against same-sex couples was absolute. There was no option to refuse federal funds and be allowed to continue to discriminate. Such discrimination was declared simply illegal: Catholic Charities would be required to place children with same-sex couples, i.e., to put them in homes that either lacked a mother or lacked a father.

That's why they left the business.
6.16.2006 2:27pm
Duncan Frissell (mail):
is there anything more nefarious going on than denying public funds to discriminatory groups?

I guess they didn't teach you in your slave school that the destruction of the bourgeois family was a goal of the Left since its invention in the 19th century.

By eliminating traditional institutions that supply a separate source of independent strength, the Left hopes to convert the population to free-floating atomistic individuals ripe for collectivization in "loose coalitions of numerous distinct movements, including (but not limited to) feminists, greens, some labour unions, some atheists, some gay rights activists, and some minority ethnic and racially oriented civil rights groups".

The atomized are also increasingly dependent on public spending and public "direction"/regulation. If you doubt this, note the increase in government spending and regulation across the OECD nations.

Quite a burden.
6.16.2006 2:30pm
Anon1ms (mail):
EV wrote: "The broad gay rights movement, which goes beyond just demanding freedom from legal punishment for homosexuality and equal access to public benefits, does intrude (whether justifiably or not) on others' business, and resisting the movement then in turn becomes those other people's business."

This is rather confusing, not in the least because of the ambiguity of the term "broad." What are those aspects of the "broad gay rights movement" that intrude on others' business, as opposed to creating equal access to government funded and sponsored programs?

Whether or not Mr. Smith should have been fired is a political question. The Governor obviously saw his statement as an indication that he could no longer trust Mr. Smith's judgement, just as if Mr. Smith had said on the television program that transit routes should avoid poor neighborhoods so as to cut down on crime in public transportation.
6.16.2006 2:38pm
DanielH (mail):
I think there is a middle ground, Erin. You can discriminate with your own dollars but now with the government's dollars. Government shouldn't have to fund organizations and people who violate their public policy values. You can't use religion as the ultimate "get out of free card" with government funding religious-based intolerance.

OTOH, religious organizations are free to discriminate on their own dime and their own time.
6.16.2006 2:45pm
Eugene Volokh (www):
Steve: I specifically said "traditional religious views," because "fundamentalist" in American discourse usually refers to certain denominations of Protestants (plus occasionally, though more rarely, to traditionalist or literalist streams in non-Christian religions). Mr. Smith and many others who disapprove of homosexuality are Catholics; "traditional religious views" avoids implicitly excluding them.
6.16.2006 2:46pm
Luke:
@Duncan:

I love that your post completely ignores any points made by anyone, but makes a nice swipe at "the Left" boogeyman.

In general:

I fail to see how the gay rights movement has placed nontrivial burdens on anyone. Gay rights activists did not fire Robert Smith, the Governor did. Both Republicans, both paragons of "individual responsibility" if the platform is to be believed. The gay rights movement is responsible for its actions only, not the actions of a conservative governor who fired his conservative employee for making a politically inane comment on public TV.
6.16.2006 2:46pm
Anon2ms:
So, what exactly did he saw that was incorrect? Devant is defined as "one that differs from a norm, especially a person whose behavior and attitudes differ from accepted social standards". Homesexuals, at best, constitue 10% of the population so they differ from the norm (90% +) and I suspect that homosexual relations fall outside accepted social standards for the majority of Americans.

He was factually correct. Or, is it simply that we are so hypersensitive that we don't want to offend anyone and will punish those who do. Of course, when we give groups power because they are "offended", they will be encouraged to find more things to be offended about.
6.16.2006 2:49pm
Public_Defender (mail):
The professor is right, gay rights can put a burden on anti-gay people just like anti-racism laws put burdens on racist people.

For those (like "M") who think the firing was inappropriate, would you still think that if the report had said the following?


Smith acknowledged after the meeting that he had referred to all Catholic priests as "persons of sexual deviancy" and said that Catholics were "inherently mentally disordered" during a political round-table discussion on a Montgomery County cable show that was shown on Sunday. "Catholicism, in my view, is deviant," Mr. Smith said.


And yes, Duncan Frissell, liberals are really just one big secret society intent on destroying the family. We hate children. We rejoice in divorce. And we kick puppies.
6.16.2006 2:52pm
Bob Bobstein (mail):
Erin-- it appears you were right and I was wrong.

That was an unfortunate decision, one that was internally controversial ("Eight members of Catholic Charities board later stepped down in protest of the bishops' stance. The 42-member board had voted unanimously in December to continue considering gay households for adoptions").

Still, is there anything worse going on than refusing to fund groups, or to allow groups to perform public functions such as adoption, when those groups insist on dircriminatory treatment? (I mean aside from Duncan Frissell's trenchant point about the centuries-old conspiracy of The Left to murder the family and God in order to increase the reach of the EPA and SEC).
6.16.2006 2:53pm
Marcus1 (mail) (www):
I guess this is politics. If you're in Alabama, you can be a succesful politician and be anti-gay. In fact, you probably pretty much have to be. In Maryland, apparently, you can't.

Freedom of speech doesn't seem to have anything to do with it; obviously a politician can't make racist comments and keep his position based on freedom of speech.

Freedom of religion seems the more interesting question, particularly since no public office is supposed to have a religious oath, right? But I still think it's a non-starter; this is about speech, not about exercise. Religious or not, I don't think a politician has a right to spout off about any which thing and keep his job.
6.16.2006 2:55pm
Duncan Frissell (mail):
You misspelled "fundamentalist," Professor.

Steve,

I guess you skipped Comparative Religions. Catholics aren't fundies. About 57% of Americans hold "traditional" religious views. Half of those are evangelicals (23.4%)and could be considered "fumdamentalist" and the other half are trad or centrist Catholics (including Latinos), trad Mainline Protestants (including Blacks &Latinos), and a mix of other Christians and other religions (Orthodox Jews, Hindus &Muslims for example).

Source: Fourth National Survey of Religion and Politics, Bliss Institute University
of Akron, March-May 2004 (N=4000).
6.16.2006 2:58pm
Anonymousss (mail):
i look forward to the learned professor's next series of posts on how laws requiring you to give your children medical care in emergencies burden the religious freedom of christian scientists. next, a series of posts on how the civil rights act of 64 burdens the religious expression of christians whose religious views tell them black people are inferior.
6.16.2006 3:02pm
Marcus1 (mail) (www):
Anon2ms,

"Deviant," as you know, means much more than "different from most people." What you're doing is the logical fallacy of equivocation; using a word with two meanings, implying one, but then falling back on the other when challenged to avoid having to defend yourself.

If you're going to call people perverts, shouldn't you at least be honest about it?
6.16.2006 3:02pm
BobN (mail):

No —- the ban in Boston on discrimination against same-sex couples was absolute. There was no option to refuse federal funds and be allowed to continue to discriminate. Such discrimination was declared simply illegal: Catholic Charities would be required to place children with same-sex couples, i.e., to put them in homes that either lacked a mother or lacked a father.

That's why they left the business.


They "left the business" because the Vatican is imposing a much less tolerant set of policies regarding gay people in general. Twenty years of reasonable policies that saw a couple dozens adoptions to same-sex couples were replaced with an absolute ban. They CHOSE to get out of the business. More correctly, Pope Ratzinger CHOSE to get them out of the business.
6.16.2006 3:04pm
Medis:
This really is an odd case in which to raise the issue of how anti-discrimination laws impact those people and institutions who wish to discriminate for religious reasons. There just isn't anything like that going on in this instance. Rather, this appears to be a case of changing norms leading to changing politics, which strikes me as not the same sort of thing at all.
6.16.2006 3:06pm
DanielH (mail):
And despite Maggie Gallagher's handwringing, these controversies exist without gay marriage. And the courts and the people will figure out how we balance religious liberty with the right of its citizenry and the public policies of our government bodies. We've done it before and we will do it again.

Heck, even Maggie would agree that even she would agree that suggesting that slavery is appropriate or interracial marriage is wrong because of the Scriptures shouldn't give you a free pass.
6.16.2006 3:07pm
Spartacus (www):
With regard to bullfighting, UCLA Law Alum stated:

"Such things are, in large part, entirely socially unacceptable in the present United States"

Bullfighting is currently practiced in southern Texas. See "Bullfighting Comes to Texas"
6.16.2006 3:07pm
M (mail):
Pub D,
I think that his firing was perfectly appropriate, given the way he stated his view. All I wanted to say was that there is probably a way that someone (unlike myself) who believes that homosexuality is a sin can express that and not say something that should get one fired from such a post.
6.16.2006 3:07pm
BobN (mail):
"traditional values"... there are quite a few denominations in this country which are traditionally liberal on social issues. Are their values not "traditional values"? Why couch things so carefully? If you want to refer to those religious groups, largely conservative (whatever that means anymore), which oppose gay rights, why not say that? MOST Catholics favor gay rights. Many even favor same-sex marriage (55% in Massachusetts, I believe). It's just as wrong, perhaps worse, to paint all Catholics as anti-gay as it is to paint all anti-gay religious people as "fundamentalists".

Of course, if you call these groups by their one common aspect -- opposition to gay rights -- they'll say you're being unfair.
6.16.2006 3:09pm
Anonymousss (mail):
marcus1; exactly. anon2ms's def means everyone is deviant: golfers, accountants, bus drivers, quakers, world of warcraft addicts. all those groups are less than 10 % of the population.
6.16.2006 3:10pm
Houston Lawyer:
I tire of the comparison of discrimination against Blacks to discrimination against gays. Blacks argued that they were the same as Whites and should be treated accordingly. Gays argue that they are different from straights and therefore straights should approve of whatever Gays want. The analogy doesn't hold.

If this guy is a political appointee, I presume he's employed "at will" and can be fired for whatever reason.
6.16.2006 3:11pm
DanielH (mail):
HL, you appear to have completely misunderstood the entire civil rights movement. Blacks weren't arguing they were the same as Whites; quite to the contrary. Instead, they were arguing they didn't want to be treated differently than whites when it came to provision of legal, social, and government rights. That's exactly what gays are arguing.
6.16.2006 3:14pm
Angus:
Anon2ms,

You are just flat out wrong. Numerous polls have found that a majority of Americans think homosexuals should be permitted to pursue their relationships as they wish. Indeed, Gallup polls have seen over the last 20 years a move to a majority of Americans saying homosexuality is "acceptable." That trend has reversed only slightly in recent years with the far right gay hysteria campaign.

http://psychology.ucdavis.edu/rainbow/html/gal1.html
6.16.2006 3:18pm
Marcus1 (mail) (www):
>And it helps us understand why those who do not value gay rights highly -- because, for instance, they believe that homosexual behavior is immoral and harmful to society -- would fight hard against expansions in gay rights, and resist claims of the "It's none of your business whom I have sex with, so why are you objection to various gay rights proposals?" variety.<

Hmm. Well, I think you're subjectively right, that this is how anti-gay activists feel. At the same time, I think you're kind of mixing together the push for legal rights with the push for tolerance and respect. The push for tolerance and respect does indeed conflict with the ability of anti-gays to be publicly anti-gay. But that's pretty much a head-to-head battle, not some sort of hidden slippery slope. And the idea that this is actually a justification for opposing gay rights seems pretty sketchy.

I don't want to be as pointed as some are, but there's kind of a comparison, it seems, to saying that opposition to feminism (potentially legitimate) could explain why people would have opposed women's suffrage(not legitimate). It amounts to a suggestion that opposition to women's suffrage should then, hypothetically, be recognized not really as anti-woman, but as something else. I guess that tactically, it may be something to be aware of, but it also starts to sound like a justification...
6.16.2006 3:19pm
UCLA Law Alum:
Spartacus:

You might want to read the article on bullfighting. Here's a quotation from it:

"Since U.S. law prohibits fight-to-kill bullfights, all fights at Santa Maria will be bloodless. The traditional three-act structure will remain intact, but blunt sticks will be used instead of barbed."

I was referring specifically to the Spanish form of bullfighting, which wounds and then kills the bull. Bullfighting in the U.S. (which is actually surprisingly common in the California central valley, particularly outside of Fresno and Bakersfield, due to large Portuguese populations) is all bloodless, and the bull leaves unharmed at the end of it.
6.16.2006 3:25pm
Porkchop (mail):
Caliban Darklock wrote:


If I can't express my negative opinion of a group, then the only opinions that can be expressed of that group are necessarily positive or neutral. If we continue to extend this practice to more and more groups, eventually it could become effectively illegal to criticise anything.


Slowly, but surely, we return to our British roots. :-D
6.16.2006 3:27pm
Medis:
Houston Lawyer,

As DanielH also implies, contrasting "same" and "different" fails to capture the actual issues involved. The actual issue in both of these situations is whether certain differences--racial differences, or differences in sexual orientation--should be used as grounds for discrimination. In that sense, the anti-discrimination claim in both cases are essentially the same: you should be treating us the same because the differences in question don't justify disparate treatment.
6.16.2006 3:30pm
Anon2ms:
Marcus1, you caught me, I was just being a troll.

I could really care less about the term used and it doesn't need to be pejuritive, but we need an general term for those outside the sexual norm who are 'protected' against people not accepting their lifestyle. So what is the correct term for lesbian, gay, bisexual, and transgendered (both pre-op and post-op)?
6.16.2006 3:32pm
MK:
The guy served at the will of the Governor and could be fired for wearing a shirt that the Governor didn't like, for our purposes. Houston Lawyer doesn't seem to know how analogies work...they can basically be twisted to suit your point. I can turn the analogy that you said "doesn't hold" on its head:

What HL said - "Blacks argued that they were the same as Whites and should be treated accordingly. Gays argue that they are different from straights and therefore straights should approve of whatever Gays want. The analogy doesn't hold."

Turned upside down - But with regards to marriage, gays argue that they are no different from heterosexual couples, and deserve equal recognition from the government. So the analogy to Blacks seeking equal civil rights does hold.
6.16.2006 3:38pm
wm13:
Well, Bob Bobstein (and others), marriage is also a public function, no less than adoption. Should organizations like the Catholic Church that discriminate against gays in performing marriages be permitted to perform marriages?
6.16.2006 3:41pm
Perseus:
I don't think that this raises any free speech issues, particularly because I think that Elrod v. Burns, etc. were wrongly decided.

But I don't see how the government accommodating religious organizations in their views of homosexuality is any more objectionable than accommodating them in their views of, say, war and compulsory military service (e.g., the Quakers).
6.16.2006 3:44pm
DanielH (mail):
They can perform marriages, as long as the don't get government money to do it. If the only person in town who will perform a legal marriage denies that right to a same-sex couple because of his/her religious beliefs, then we have a problem.
6.16.2006 3:45pm
Tom952 (mail):
Religeous beliefs are not the only basis for a person to object to gay lifestyles. For example, a person might object to gays because of pedophilia by some gays, a practice the gay movement has never disavowed.

If a government appointee speaks out on this basis, does it make a difference?
6.16.2006 3:47pm
DanielH (mail):
because of pedophilia by some gays, a practice the gay movement has never disavowed.

Tom needs to go back to remedial civil rights class with HL. Seriously, do people just sit around making this stuff up?

As to you basic question, since Maryland bans discrimination based on sexual orienation, it seems that a government official making a comment about pedophilia and gays and thus objecting to them could probably be fire. If for nothing else, probably intellectual competence.

Religion appears to be the one "get out of jail free" card when you violate public policy by making statements that are discriminatory.
6.16.2006 3:52pm
Luke:
Tom, what the hell are you talking about? Pedophilia is rampangt amongst straights as well, and the straight movement has never "disavowed" it. Go look at the "barely eighteen" section of any porn store and you will see it has a HUGE following amongst straights. In any case, how would the gay "movement" disavow it? Do they have an official center like the Catholic Church? Who is Pope of the gays?
6.16.2006 3:53pm
nn489:
If this guy was in charge of transportation he probably should have waited till he was out of office to speak up on an unrelated, controversial issue.

But what happened to him is an indication of the losses that political correctness imposes on society: whatever poll you look at, there are really large chunks of the American populace on either side of this cultural divide. If neither side is willing to tolerate the mere expression of the other side's views in public, how are we to resolve this conflict?

In regard to the analogy between sexual orientation and race: nobody disputes that gay relationships don't produce children in the natural course of things. This at least is a difference between heterosexual and homosexual relationships. Is there any analogous difference between the races-- based on nature, not on social conditions?
6.16.2006 3:56pm
Luke:
@nn489

Well, other races have slightly different physical differences, most of which are "cosmetic", if that is the right term.

But the (non)production of children is irrelevant to the big question of gay marriage, since numerous married couples never will have children, either out of choice or biological dysfunction or age. Or are we to make the production of children a requirement for the government to grant marriage licenses?
6.16.2006 3:59pm
Ken Arromdee (mail):
They can perform marriages, as long as the don't get government money to do it.

But why?

The point is that "they can do it as long as they don't take government money" isn't an option for adoptions, supposedly because adoptions are a public function. Why, then, is it an option for marriages?
6.16.2006 4:00pm
DanielH (mail):
In the Mass case, Ken. Catholic Charities contracted with the state, but also did private adoptions. So they were private, but also did some public adoptions. Many adoptions don't involve going through a government agency or contractor.
6.16.2006 4:02pm
Frank Drackmann (mail):
So theres something wrong with the "Barely eighteen" section of the Adult Video store?
6.16.2006 4:02pm
byomtov (mail):
This is a pretty weak post. The guy made uncomplimentary remarks about a group of people. He lost a political appointment (is it even clear that this was a full-time job?) as a result, and EV is blaming it on gay rights activists?

Suppose he'd referred to "gun nuts" and gotten fired. Would EV then worry that gun rights groups were imposing "nontrivial burdens" on people who hold and express the view that widespread gun ownership is undesirable?
6.16.2006 4:02pm
Anon1ms (mail):
Anon2ms asks "So what is the correct term for lesbian, gay, bisexual, and transgendered (both pre-op and post-op)?"

People
6.16.2006 4:03pm
Luke:
@Frank-

No, just pointing out that near-pedophilic pornography enjoys a large following amongst straights, so the upthread poster's comments about the "gay movement" disavowing pedophilia are nonsensical and were probably just regurgitated from a Mike Savage(Weiner) book.
6.16.2006 4:06pm
Will Schendel (mail):
If Smith, the Board member, has any responsibility for employment actions, the State is at risk in a discrmination case for comments by him showing bias toward a member of a protected class - and Maryland apparently added sexual orientation as a prohibited characteristic for employment actions in May of 2005. The current governor, Robert Ehrlich, signed the measure. If Smith's anti-gay comments are admissible against the State (or an agency of the state), why shouldn't the State be able to discipline him in order to limit its exposure?
6.16.2006 4:19pm
byrd (mail):
I loved the phrase "persons of sexual deviancy." Even while expressing a very un-PC idea, he couldn't help but use PC phrasology.

That makes him the worst of the worst. There are many levels on which he deserves to lose his job and be drummed out of civil society. I can't feel too bad about the one that got picked.

(is that snark? or hyperbole? not sure, but it's not entirely facetious)
6.16.2006 4:21pm
nn489:
@Luke:

The children-as-products-of-marriage debate has been hashed to death elsewhere, and I don't mean to hijack this thread for that purpose. Instead, I was thinking on a broader scale: does the infecundity of gay relationships mean that sexual orientation should be considered "deviant"? There was lots of purported "scientific evidence" used by racists to "prove" that non-whites were inferior, but that has now been entirely discredited. So what I was asking was, does the analogy hold up at this level?

On another level, many people seem to think that this difference between gays and straights is as insubstantial as skin color. Is that correct?
6.16.2006 4:48pm
Spartacus (www):
UCLA Alum: clearly my mistake. I must have confused these south Texas bullfights with those just on the other side of the border (in Mexico), which I have heard of many southern Texans attending, which are of the traditional type.
6.16.2006 4:58pm
Medis:
Ken Arromdee,

I think there is actually one semi-serious point here. I don't think the government could interfere with discriminatory churches conducting their own marriages--but those need not convert automatically to civil marriages, as in fact has been proven by the many gay marriages conducted by various churches.

So, what is less clear to me is whether discriminatory churches could be denied the authority to sign a marriage license for a couple in lieu of a state official. Of course, this has always been an oddity in the law--why, in addition to state officials like judges and justices of the peace, should clergy, but no one else, have the power to sign marriage licenses? Frankly, this always struck me as constitutionally suspect.

In any event, such a law wouldn't change much in practice. If you wanted to get married by the discriminatory church, the church could do it. At most, you might then have to get a state official to sign your civil marriage license. And frankly, I think this is how it should work anyway, discriminatory churches or not.

nn489,

First, I think byomtov has it right on the "political correctness" issue. For example, suppose a member of Bush's cabinet referred to Evangelical Christians as "Jesus Freaks" in a public event. You can bet that person would get fired, and it would be politics, not "political correctness".

Anyway, I think the best available science (and my own experience) suggests that many gay couples are capable of forming happy, healthy, loving, romantic partnerships in substantially the same manner that straight couples can. I think that is about all we need to show that gay couples are capable of participating in marriage to the benefit of both themselves and society. If they also raise children (as many undoubtedly will), the children will likely benefit as well.
6.16.2006 5:05pm
Bob Bobstein (mail):
Ken: Should organizations like the Catholic Church that discriminate against gays in performing marriages be permitted to perform marriages?

Of course. Even if you get married in a church, you still have to get a license from the govt (or at least, my hetero Catholic marrying pals here just had to do both, and I assume this is the case everywhere). The Church retains the right not to recognize divorces that the state grants, to the occasional consternation of a Kennedy. Similarly, it retains the right not to marry two black people, or people of different races, or two gay people.

Legal recognition of marriage is separate from religious recognition of marriage.
6.16.2006 5:10pm
Tony (mail):
The broad gay rights movement, which goes beyond just demanding freedom from legal punishment for homosexuality and equal access to public benefits...

Can you give an example of exactly what you mean here? In what particular sense does the gay rights movement "go beyond" this?

In the context of this post, I might guess that you mean that the "movement" (which is kind of vague) is demanding the suppression of speech in the interest of advancing its goals. But I'm not aware of any gay political organization that fails to support free speech rights. If there were, I'd be interested in hearing about it, because I'd probably write them a nasty letter.
6.16.2006 5:15pm
Frank Drackmann (mail):
How often does the Bull win a Bullfight? Is it like the Cubs winning, unusual but not unheard of, or is it like the Washington Generals beating the Harlem Globetrotters?
6.16.2006 5:32pm
Ship Erect (mail) (www):
Anyone else find it funny that someone with the same name as the lead singer of The Cure said this?

I try to laugh about it, cover it all up with lies
I try to laugh about it, hiding the tears in my eyes
'cause boys don't cry
6.16.2006 5:37pm
David M. Nieporent (www):
This is rather confusing, not in the least because of the ambiguity of the term "broad." What are those aspects of the "broad gay rights movement" that intrude on others' business, as opposed to creating equal access to government funded and sponsored programs?
The aspects that want antidiscrimination laws to be extended to encompass sexual orientation, obviously.
6.16.2006 5:43pm
David M. Nieporent (www):
No, just pointing out that near-pedophilic pornography enjoys a large following amongst straights, so the upthread poster's comments about the "gay movement" disavowing pedophilia are nonsensical and were probably just regurgitated from a Mike Savage(Weiner) book.
That's not even close to a sequitur. "Near-pedophilic" of course, necessarily means NOT pedophilic. One doesn't have to "disavow" pedophilia if one is interested in sex with adults any more than one needs to "disavow" speeding if one drives at the speed limit. It may be an arbitrary line, but it's a bright line.

It's also wrong, incidentally; sex with 18-year olds is not "near-pedophilic." Pedophilia is the term for sex with (or sexual attraction towards) pre-pubescent children.
6.16.2006 5:50pm
CJColucci:
What if he got fired for criticizing the Dixie Chicks for their "unfair" song lyrics?
6.16.2006 5:50pm
nn489:
Medis,

Yeah, it's completely reasonable for the governor to fire the guy, given the political ramifications of what he said. But those ramifications are at least partly the result of political correctness. If Americans of all opinions could listen more civilly to people who disagree with them we'd have a better country.

Anyway, as to the scientific evidence-- I'm not talking about gay marriage in particular. I'm talking about homosexuality in general, in relation to the analogy between it and race. Our society has largely (and thankfully) determined that such natural differences as exist between the races offer no basis for discrimination. The argument-by-analogy for gay rights would be to say that neither are there any differences between gays and straights that justify different treatment. But people who regard homosexuality as "deviant" would argue that the natural fecundity of straight sex (and, conversely, the natural contraception inherent in gay sex) is in fact a significant difference. So the analogy between orientation and race stands or falls on that statement being false.
6.16.2006 5:52pm
JonathanW (mail) (www):
@DanielH

Religion appears to be the one "get out of jail free" card when you violate public policy by making statements that are discriminatory.

Good point. It helps when you’ve got Dr. Dobson, tag-teamed with Focus on the Family’s Love Won Out and the ADF guarding your backside, and “marriage scholars” like Maggie Gallagher playing the “religious persecution” card. It’s really quite amazing that an intelligent person like Robert Smith who works side by side with “openly gay elected official” Jim Graham on the Metro transit board would behave in this manner.

From my limited perspective, people who are openly gay have settled down and formed family and are not ashamed of their families. In the workplace, openly gay people display family pictures on their desks. This can be an act of bravery if no protections are offered as is the case with Virginia state government employees.

A hypothetical VA case brings up the other side of the religious freedom coin. Suppose an openly gay VA employees marries at his United Church of Christ church. After he returns from the honeymoon, he brings in a wedding photo, and within five hours, finds himself fired. He can’t claim sexual-orientation discrimination because of the VA attorney general’s ruling, but he may be able to claim religious discrimination.

As Chai Feldblum explains, this is a zero sum game. If everybody would just agree to leave family matters alone, people with conflicting views may be able to get along. There is still the matter of the Pope declaring that “non-traditional” families are “an eclipse of God”, but didn’t an earlier Pope punish Galileo for insisting that the earth is round?
6.16.2006 6:09pm
Anderson (mail) (www):
But people who regard homosexuality as "deviant" would argue that the natural fecundity of straight sex (and, conversely, the natural contraception inherent in gay sex) is in fact a significant difference.

What about the natural resistance of melanin-rich skin to skin cancer? Or the natural resistance of whites to sickle-cell anemia? These are differences, right?

Oh, wait, you said "significant" difference.

So why, exactly, is the capacity to reproduce "significant" in this context? Significant to whom, on what basis? Go ahead, take your time.

(To fend off a typical dead-end, let me cite the slogan I saw on a sticker once: "I f--k to come, not to conceive.")
6.16.2006 6:17pm
Greedy Clerk (mail):
Another in the long line of EV's odd obsession with homosexuals. What is the point of this post? Let's play a little game and make a few minor changes to EV's post which I will highlight -- all other words are Eugene's alone:

Nonetheless, it seems to me that this shows that the jewish civil rights movement-- which in many respects I support -- has indeed led, and is likely to continue to lead, to nontrivial burdens on people who hold and express traditional religious views that condemn jews for not accepting christ as their savior. . . . And it helps us understand why those who do not value jewish civil rights highly -- because, for instance, they believe that the jewish religion is immoral and harmful to society -- would fight hard against expansions in jewish civil rights, and resist claims of the "It's none of your business whom I worship, so why are you objection to various jewish civil rights proposals?" variety. The broad jewish civil rights movement, which goes beyond just demanding freedom from legal punishment for jews and equal access to public benefits, does intrude (whether justifiably or not) on others' business, and resisting the movement then in turn becomes those other people's business.



What would we think of someone who posted an entry in a blog such as that above? We would call them a bigot, for what other motivation would they have to point this out other than to help justify those who object to acceptance of jews -- even if they (like EV pretends to do) "support" jewish civil rights in general?

EV has an odd obsession with homosexuals -- recall his bizarre series of posts about how it is true that homosexuals are trying to "recruit" people.
6.16.2006 6:20pm
Greedy Clerk (mail):
Is it a "news" item that if you embarrass your employer with gratuitous expressions of your personal views that you can be fired? If the President's speechwriter appeared on the Tonight Show and tossed in some opinion that Jews run and manipulate the world would anyone be surprised that the writer the next left "to pursue other interests"?

No, it would only be news to someone who wanted to excuse and justify those who discriminate against jews. Although Eugene professes to be a supporter of gay rights generally, he often goes out of his way to justify and excuse those who discriminate and hate gays. This is just another example of his behavior in this regard. As I note above, if this had involved Jews or blacks, do you think Eugene would have pointed this out and used it as an example to point out the obvious facts which he states? No, he would not. So what's the difference here? One difference and one only: Homosexuals.

Eugene's obsession reminds me of this onion article.
6.16.2006 6:26pm
Anderson (mail) (www):
EV has an odd obsession with homosexuals -- recall his bizarre series of posts about how it is true that homosexuals are trying to "recruit" people.

Hopefully, EV is more (1) a contrarian and (2) someone interested in gay rights for purposes of his "slippery slope" theories.
6.16.2006 6:30pm
Greedy Clerk (mail):
Those who opposed the inquisition interfered with traditional religious people's actions by wanting them to stop burning jews at the stake. Of course, I oppose burning jews at the stake, but let's not pretend that the anti-inquisition people were not interfering with traditional religious views. It's a slippery slope -- perhaps this burden is justified, but let's not pretend it doesn't exist.

Silly professor.
6.16.2006 6:35pm
Greedy Clerk (mail):
Yes Anderson, it's quite a slippery slope -- those who campaign for equal rights when successful impose a burden on those against equal rights by making it less socially acceptable to voice their views. Very slippery. Clearly the kind of thing someone who "supports" equal rights would point out. Please find me examples of where EV does this with Jews or Blacks, and I will sell you this lovely bridge I happen to own in Brooklyn.
6.16.2006 6:37pm
AntiCatholicBigotryIsOk:
Silly Catholic. Did you think you could publically discuss your faith? You must be purged. Cleansed. Re-educated.

Don't you know that free speech and the freedom of religion is restricted to your private home and church? Speak outside those places and the "tolerant" and "openminded" left will get you fired.

Why do these people feel the need to talk about their religion? I mean, what, do they think the 1st Amendment applies to THEM? Are they that silly?
6.16.2006 6:53pm
SacSays (mail):
Greedy Clerk:

I think part of your comment comes very close to being out of line. One of the most important movements forward in gay rights has come with the increasing ability of heterosexuals to think about gay rights. Prior to the 1950s or so in this country, don't-ask-don't-tell was more than just a military policy -- avoidance was the generally accepted way of dealing with homosexuality, and was the best case scenario for most lesbians and gay men.

That has changed, but many heterosexuals are still sorting out their thoughts and feelings -- just as those of us who are gay had to do for ourselves as we came out of the closet. Eugene is willing to engage even the most difficult dilemmas involving homosexuality, and deserves credit, not condemnation for doing so.

This post is an excellent example. We treat religious beliefs with an extremely high degree of solicitude in this country, and I think religious believers have begun taking some advantage of that deferential attitude when gay rights are the subject. While other kinds of beliefs are subject to the rough and tumble of discussion, debate and sometimes quite rude dismissal, religious beliefs are expected to be - and usually are - treated differently. And whenever religious believers are criticized, they claim that it is an unfair attack on their faith.

By exploring this interesting case, this post raises the question of whether religious beliefs should be treated specially. As earlier posters have noted, the culture has changed radically when a Republican governor of a conservative state believes it will be in his political interest to fire an aide who I think can fairly be characterized as speaking disrespectfully of a small group of fellow citizens. The aide did this because of his religious beliefs. Should that make a difference? Many religious people believe it should.

I, at least, do not. I think religious beliefs, like others, should be subject to criticism, just as I believe that claims to equal protection by lesbians and gay men should be subject to challenge and hard questions. Losing a job is an extreme situation, but as has been noted, this is an unavoidable part of being a politician -- things that might be tolerated for private individuals take on an entirely different character when they come onto the public stage. Gay rights is an issue of that kind.

When it comes to equality, I think we gays have the better argument. More important, I believe that homosexuality, properly understood, is entirely compatible with religion, properly understood. This, too, is controversial, and well worth debating.

What isn't worth debating, I think, is Eugene's good faith and engaging curiousity about how these issues play out in our culture.
6.16.2006 6:56pm
AntiCatholicBigotryIsOk:
Do not worry though folks. Once the US Supreme Court mandates gay marriage (those pesky constitutional amendments in 30+ states be darned!) the churches that refuse will be next.

They will not be allowed to sign marriage licenses. They will be purged and cleansed. And then we can go after their tax exempt status!

If gays marry, churches could suffer

By Douglas W. Kmiec, a professor of constitutional law at Pepperdine University School of Law


For technical legal reasons, it is difficult to challenge a religious group's non-profit status in federal court, but state court is more open. There, judicial decisions approving same-sex marriage or even state laws barring discrimination can be used to pronounce any opposing moral or religious doctrine to be "contrary to public policy." So declared, it would be short work for a state attorney general's opinion to deny the tax-exempt status of charities and most orthodox Jewish, Christian and Islamic religious bodies. If enough state lawyers do this, expect the IRS to chime in.
6.16.2006 6:58pm
AntiCatholicBigotryIsOk:
And before you claim "Catholics do not marry divorced couples" bear in mind that with a mandate of gay marriage from the Supreme Court, homosexuals become a "protected class" (something divorcees are not) and thus it makes it that much easier to attack the church's tax exempt status or their cleric's authority/license to preside at marriages.
6.16.2006 7:08pm
Greedy Clerk (mail):
SacSays --- I find your post out of line. If you are interested in engaging me in debate (and do not refer to "we gays" as including me as I am not gay) then please explain how you think you would react to a post as I constructed it simply replacing "jew" for "gay". I would be shocked if you did not admit that you would think the person posting it was an antisemite or an apologist for antisemitism. Please drop the c--- about "good faith" no one buys it anymore.
6.16.2006 7:12pm
Greedy Clerk (mail):
AntiCatholicBigotry, how would you react to a state employee of the same level as this guy who said the following: "As a Muslim, I firmly believe that all Catholics are religious deviants who are second class citizens in the eyes of God and will burn in hell with the Zionists, who they enabled to take over our holy land. Of course, these are just my personal feelings though and they will not get in the way of my running the Metro department."

I am sure you would be standing up for his "right" to say such things without losing his job.
6.16.2006 7:16pm
nc3274:
Prof. Volokh:

There's an odd switch of wording in this post that I think led to a lot of the comments in this chain. I was wondering if it was intentional or inadvertent. Early in the post, you refer to the gay rights movement as potentially imposing "burdens" on other people. That makes sense to me--the ascendancy of any group/movement/viewpoint logically imposes some sort of burden on those who don't like that group/movement/viewpoint. And I think it's an interesting discussion.

But then in the paragraph starting with "Nonetheless," you refer to a "decrease in the rigths [sic]" of others. Now, rather than merely imposing a "burden," the movement has infringed on someone's "rights." Was that switch intentional? If so, what's the theory of "rights" you are working under? I'm probably fairly far down the spectrum here, but my view of (especially First Amendment) "rights" is that your rights are what the cases say they are. And in this case, as you suggest, there's no reasonable argument that this guy's rights under the First Amendment case law were infringed. Are you actually thinking of other examples (e.g., employment discrimination, fair housing, etc. as extended to sexual orientation), do you have a different conception of "rights" in mind, or was the change in language just inadvertent?

Thx.
6.16.2006 7:35pm
nc3274:
By the way, the use of "[sic]" above was not intended as a cheap shot or anything else. Old habits die hard--sorry.
6.16.2006 7:40pm
Marcus1 (mail) (www):
Greedy Clerk,

I think you're completely wrong. The idea that EV is anti-gay is silly. He's not; he's simply pro-religion. Guess what? These values often contradict. And they do so in ways that 99.9% of people, even extremely intelligent people, don't fully appreciate (e.g. comprehend).

The post about Jews is completely different because the movement for racial non-bigotry and equality has been around prominently for a long time, and people have had time to come to terms. At this point, showing that kind of solicitude towards racism is clearly overboard, and accordingly, one could draw a lot of very negative inferences.

The movement for homosexual rights, however, is much more nacent. That makes it completely different. Why? Because it's new, it's weird, and people don't know what to make of it. It's also different because homosexuality appears in a way to be a choice, and thus many people don't see it as a civil rights issue in the same way as racism. I think these people are wrong, but I can't go and say they're all evil for thinking this. When it comes down to it, most people are wrong about just about everything.

Some day, the assumptions about uneasiness with full racial equality may fully transfer to uneasiness with full sexual equality. To say they do now, though, is to ignore a lot.

Let's say you had a founding father, who believed in full racial equality and respect and tolerance, but didn't believe in miscegenation. Is that just as bad as the similar view would be now?
6.16.2006 7:58pm
Justin (mail):
"Nonetheless, it seems to me that this shows that the gay rights movement -- which in many respects I support -- has indeed led, and is likely to continue to lead, to nontrivial burdens on people who hold and express traditional religious views that condemn homosexuality"

Clinton's nomination for ambassador of Lichenstien feels your pain. /sarcasm
6.16.2006 9:06pm
Justin (mail):
Marcus1,

I'd claim that EV is generally an apologist for all sorts of bad people, including anti-gay. Though EV supports gay rights (at least in theory), he rarely (and possibly never) makes posts in favor of gay rights, and with great frequency makes posts in favor of tolerance towards homophobia. In being such an apologist, EV is the type of friend that the "homsexual lobby" (as EV has disgustingly referred to in the past) would rather just consider an enemy in the first instance.
6.16.2006 9:08pm
David M. Nieporent (www):
Justin, I rarely see you make posts in favor of white rights. Can I conclude from this that you're anti-white?
6.16.2006 9:59pm
Just:
"I'd claim that EV is generally an apologist for all sorts of bad people, including anti-gay. Though EV supports gay rights (at least in theory), he rarely (and possibly never) makes posts in favor of gay rights, and with great frequency makes posts in favor of tolerance towards homophobia. In being such an apologist, EV is the type of friend that the "homsexual lobby" (as EV has disgustingly referred to in the past) would rather just consider an enemy in the first instance."

I strongly believe that Professor Volokh's conservative ethnic background, and perhaps his Jewish religion, affect his views on this issue. Not that there is anything wrong with that. It's not just the conservative Catholics, you know.

Plese see my comment on the "Racism Analogy" post for further explanation. Thank you for allowing my comment, respectfully submitted.
6.16.2006 10:19pm
Just:
"We treat religious beliefs with an extremely high degree of solicitude in this country, and I think religious believers have begun taking some advantage of that deferential attitude when gay rights are the subject. While other kinds of beliefs are subject to the rough and tumble of discussion, debate and sometimes quite rude dismissal, religious beliefs are expected to be - and usually are - treated differently."

I agree. Often to society's detriment.
6.16.2006 10:23pm
Greg (www):
Hmm. Anti-discrimination laws as a burden on the free exercise of religion. Where have I heard that before? Bob Jones University anyone? (461 US 574) "Not all burdens on religion are unconstitutional."

So, been there, done that.
6.17.2006 12:35am
Jamesaust (mail):
"Nonetheless ... nontrivial burdens on people who hold and express traditional religious views that condemn homosexuality"

Well, not quite. The non-firing expression of traditional views that condemn homosexuality is "...but many persons, including myself, have strong religious beliefs condemning persons we believe are acting immorally." I doubt the Governor would even have bothered to express disapproval in private to Mr. Smith over such a statement.

Mr. Smith's remark seems to carry two particular red-flags. The first, despite some protestation here to the contrary, is the use of the word sexual deviancy, which I believe everyone quite fairly understands to be phrased to express an especially perjorative sense of disdain not a value neutral description.

The second, I don't believe anyone has noted, is "special place of entitlement [for homosexuals]." This is a favorite canard for some - the notion that mandating equality before the law for those singled out for discrimination creates "special rights." For the uninitiated, the phrase seems fairly innocuous. Kudos, however, to the Governor for recognizing its majoritarian dismissal of minority rights. There is no more a "special right" for a homosexual to be treated as an equal citizen by a neutral secular government than a "special right" exist to recognize the religiously inspired pacifist motivations of tiny religious sects or "special rights" for a culturally-constructed population segment like "Hispanics'" inclusion in race discrimination laws.
6.17.2006 12:59am
David M. Nieporent (www):
This is a favorite canard for some - the notion that mandating equality before the law for those singled out for discrimination creates "special rights."
It's true that this is not a "special right," but a basic right everyone should enjoy. The problem is that history shows us that the right to equality before the law tends to

A) morph into the right to have government protection from private discrimination (which is de jure equal treatment, but de facto a special right); which

B) morphs into special preferences (e.g. "affirmative action," which is a special right, to have the government discriminate against other people in your favor.
6.17.2006 1:35am
Just:
That last argument is laughable.
"If we treat you equally, as required under the law, you may ask for more. Therefore, we deny to recognize equal treatment in the first place."

Yeah, that's the winning ticket!
6.17.2006 6:33am
Raoul (mail):
I refuse to lament the end of any state of being or "right" that requires for its very survival a continuing denial of the moral value, personal dignity and societal worth of gay people, gay couples, and gay families.

But then, it's no surprise I don't share EV's lament--for I don't actually derive any personal satisfaction or sense of self-worth from carrying on the inherited traditions that happen to teach straights are the Brahmins of the moral caste system, and gays the untouchables.
6.17.2006 8:27am
Medis:
nn489,

I think there is an ambiguity in your word "significant". A difference can be "significant" in one or more ways without that difference being RELEVANT to the differential treatment in mind.

For example, consider the following statements:

"Biologically, there are significant differences between men and women. But those differences are irrelevant to the respective capacity of men and women to participate in political activities."

The same logic applies to the issue of "deviancy" in just a slightly more complicated form. This would be the basic argument:

"Biologically, there is a significant difference between reproductive sex acts and nonreproductive sex acts. But those differences are irrelevant to the capacity of sex acts to be part of a healthy sexual relationship, because one need not have reproductive sex in order to have a healthy sexual relationship."

This same principle can be applied, of course, to not only gay couples, but also to straight couples who only have nonreproductive sex (either through choice or because of inability to reproduce). The claim would be that the mere fact that such sexual relationships--gay or straight--only involved nonreproductive sex acts would not render them unhealthy.

Of course, I am substituting the terms "healthy" and "nonhealthy" here for "normal" and "deviant". That is because I think "healthy" is capable of some sort of objective inquiry, whereas people's definition of "normal" and "deviant" tends to depend on some sort of a priori religious/moral norms.

Finally, the scientific community has in fact concluded that nonreproductive sexual relationships, including gay relationships, can be healthy. In other words, we have the necessary confirmation that being gay is not in fact unhealthy. Again, whether you want to call it "deviant", even if healthy, is largely something that objective inquiry cannot answer.
6.17.2006 9:48am
Bob Van Burkleo (mail):
AntiCatholicBigotryIsOk, you are mistaken.

If the arguments before the supreme court are like the ones in Washington state there will be no 'protected' classes - this is about every INDIVIDUAL citizens right to marry and there subsequent right to license the civil contract in support of marriage. 'Gay' will no more be protected than 'straight' and they can't demand marriages from any church, even their own right now.
6.17.2006 1:17pm
Bob Van Burkleo (mail):
They were taken to court because they weren't acting as a public accommodation, and they went before the highest court in the land and claimed to be a private religious organization. OK great, that confusion was cleared up. But many of the perks they got when governments mistakenly thought they were a public accommodation are going to rightfully dry up. Seems they are trying to have their cake and eat it too.

I do remember when I was in the BSA that it did act as a public accommodation - shoot my religion merit badge work was about how the hallmark of a false religion was one that promised an afterlife and included a list of ones I thought were valid and the reasonings behind it. The Baptist minister that signed off on it just said 'well you've obviously put a lot of thought into this'. Can't imagine that happening now.
6.17.2006 1:53pm
Cornellian (mail):
Do not worry though folks. Once the US Supreme Court mandates gay marriage (those pesky constitutional amendments in 30+ states be darned!) the churches that refuse will be next.


You're not going to convince anyone when you don't seem to be aware that the US Supreme Court has nothing to say about the meaning of state constitutions, nor does the amendment of state constitutions have any effect on the meaning of the federal constitution.
6.17.2006 11:05pm