Wednesday, August 4

Of Dead-Weasel Toupees And Homophobia


Skepticism is the chastity of the intellect, and it is shameful to surrender it too soon or to the first comer: there is nobility in preserving it coolly and proudly through long youth, until at last, in the ripeness of instinct and discretion, it can be safely exchanged for fidelity and happiness. -- George Santayana

In opposition to civil rights for LGBTQ people, conservatives often advance the argument that, whereas civil rights legislation for African-Americans is justified on the basis that one is not free to choose one’s race, civil rights legislation for LGTBQ people is not justified because homosexuality – at least, so the allegation goes – is something people choose.  So, the argument proceeds, legislation prohibiting discrimination against African-Americans in matters of housing, public utilities (swimming pools, drinking fountains, etc.), employment, etc., is unjustified, because such discrimination is based upon a criterion over which African-Americans have no control and no choice – being black – whereas discrimination in the same areas against LGBTQ people is at least defensible, because it is based on a criterion over which LGBTQ people do have control – namely, being lesbian, gay, bisexual, etc., etc. This argument does have a certain superficial appeal, but it ignores two complementary “counter-justifications”:  that in certain cases, discrimination is justified, based on circumstances the individual has not chosen; and in certain other cases, discrimination is not justified, based on circumstances the individual has chosen. Besides, as we shall see below, conservatives have been none too persnickety in the application of their own principle.

A moment’s thought will show that, sometimes certain circumstances, even circumstances that are not chosen, circumstances that are no more a matter of choice than race, justify pretty harsh discriminatory measures.  I am old enough to remember the traumatic polio scares of the 1950s, prior to the development of the Salk vaccine.  Children who showed the slightest symptoms of polio were rigorously quarantined and excluded from, say, participation in any kind of school activities.  The kids’ susceptibility to polio was certainly not a matter of choice.  Yet we were discriminated against and our freedom was severely curtailed for quite some time.  As a matter of law, people of too close kinship are prohibited from (civilly) marrying.  The decision to marry, of course, is a matter of choice, but their degree of consanguinuity certainly is not:  the structure of their family tree was determined before they came on the scene. Yet their freedom to (civilly) marry is often curtailed.  Other examples could be cited, but the point should be clear:  if conservatives are lemmings-over-the-cliff consistent in their insistence that discrimination on the basis of non-chosen circumstances is not permissible, then they should not hesitate to allow people with a deadly infectious disease to remain at large, nor should they balk at allowing cousins to marry. But I would wager that even the most damn-the-torpedoes, Ayn-Rand- / Nathaniel-Branden- / Robert-Nozick-worshipping libertarian conservatives would blanch at the thought of allowing Typhoid Mary to wait tables at the local Olive Garden, constitutional considerations of “due process” notwithstanding.


By the same token, and in the complementary case, the mere fact that a form of behavior is chosen does not necessarily justify discrimination.  Donald Trump’s decision to wear a Comb-Overs-R-Us hairpiece eerily reminiscent of a dead weasel would not justify a Four Seasons maître d’ seating him at a table by the kitchen – or even in the kitchen – even as a matter of choice on the maître d’s part, and least of all as a matter of law.  My second-oldest god-daughter, a with-honors graduate of both Loyola Marymount University and Union Theological Seminary, is a great fan of “Dog”, the Bounty Hunter, but while I question her taste in TV shows, I would militantly oppose any de jure regulation seating Becky at the back of the bus because of her admiration for “Dog”.  Clearly, there is a broad swath of life where the modes of expression and the kinds of behavior one voluntarily adopts simply do not matter and so properly are – or, anyway, should be – matters of indifference, and therefore not a legitimate basis for discrimination.

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Conclusion:  the propriety of discriminatory legislation is independent of the degree of choice – if any.  The only criterion that matters is the degree of – actual or potential – damage one anticipates as a result of a refusal to discriminate.  This potential for damage is the factor common to both the foregoing sets of examples. The dimension of voluntariness in conservatives’ arguments against LGTBQ civil rights is merely a red herring. That is why it is permissible – even morally and legally compulsory – to isolate people with potentially lethal diseases:  the catastrophic harm from a pandemic justifies such measures, even though the people being quarantined have no choice in contracting the disease.  The consequences to society from birth defects resulting from quasi-incestuous marriages similarly justify restrictions on who may (civilly) marry.  (Even then, however, “due process” and “equal protection” restrictions would apply.) On the other side of the ledger, some behaviors, though freely chosen, do justify discrimination.  Others do not.  “The Donald’s” hairpieces are crimes only aesthetically, though not juridically. They harm no one. But it is entirely justifiable to discriminate against a convicted violent felon with a string of firearms violations by using such a criminal record to prohibit gun ownership, Second Amendment notwithstanding.  (Even here, I would argue, first, that it is much more difficult to justify penalties like disenfranchisement of convicted felons, and secondly, that depriving even convicted “Masters of the Universe” loan sharks and Shylocks of Second Amendment rights is difficult to justify, though, if possible,  deprivation of food, water, gravity, and ozone-layer protection would be more appropriate.)  The relevant question -- the only relevant question -- is not “What choice?” but “What harm?”

On that basis – the only relevant basis – the cases of civil rights legislation for African-Americans and civil rights legislation for LGBTQ people are exactly, precisely comparable.  Granted, merely being black is not a matter of choice.  But that is beside the point.  Rather, the relevant circumstance is that merely being black also works no harm to the community. But more to the point:  even if LGBTQ were chosen, the only relevant circumstance is that merely being LGBTQ likewise works no harm to the community.  Ditto gay marriage.   The only quote-harm-unquote to society alleged by conservatives is predicated on purely religious objections vis a vis alternate sexual orientations that have no business being incorporated into the civil law, because, being purely religious and sectarian, such objections would constitute facial violations of the “establishment” clause of the First Amendment:  writing religious doctrine into the civil law. In closing, let’s dispense with diplomacy for a moment and be quite blunt, shall we?

Irrespective of one's personal or sectarian theological beliefs, from the standpoint of the civil law, be the matter in question seating gay folks at lunch counters or baking wedding cakes for them or taking wedding pictures or doing any other type of business them with them in which the law forbids discrimination on any prior legitimate basis, if your only objection to full civil rights for LGBTQ folks is “It pisses off Jesus”, then you have no objection.

James R. Cowles


  • Am I really making the first comment? Well-written James, thank you. I’ve been caught up in other business meaning to get back to you on theories of origins. But here, can I ask you this, and let’s go blunt, as you say: presently it looks like laws will fall in line in the direction of “you must bake the gay wedding cake” if asked. But let’s be clear: the merchant who objects isn’t reacting to the wedding, or the cake, he/she is viscerally reacting to sexual relations to a same-sex partner: it feels creepy to him/her. Granted, as you say, we can’t discriminate against Trump just cuz he or his hair is creepy. But we DO discriminate again live porn in the park and parading women topless and children running naked at the mall, but not in our backyards. And then somehow women can be nearly topless and bottomless at the beach or in a mall and it’s alright. Wouldn’t it be a good question to ask why we still think its fine to prosecute some of these these but not all of these things? Aren’t visceral reactions being accommodated for?

    One day a conservative lobbyist is going to change battle plans and object to seeing her tax dollars rise to pay for medical care for STDs among gay men and straight men and women, imagining or projecting 80s AIDS proliferation among gay men and the increased STD rates among Americans thanks to promiscuity. The lobbyist will lose just as a prohibitionist concerning alcohol and smoking will lose, but not because it’s not beyond reason – it’s just beyond cultural preferences which very much take into account protecting certain visceral reactions while discounting or negating other visceral reactions. There’s nothing intellectual or logical to pin-down – it’s all about gut reactions.

    Somewhere outside of viscerally-based American law there is something velvety smooth and consistent about the 10 commandments, commandments that say nothing about gay marriage or topless women. What is the spirit behind the 10 commandments, or Jesus’s two commandments? Hard to say how we could ever bring whatever spirit we find in them into American law – it could get a good man killed.

    • I would say that the wedding-cake situation and the nudity-in-the-park cases are fundamentally different in that, in the former, as a business owner, (impersonal) you are offering a service to the public. Given that, the service must be offered impartially to, and performed impartially for, anyone who chooses to avail her / himself of it — PROVIDED there is no demonstrable, objectively verifiable harm from doing so. So, while it would be legitimate (probably even mandatory) for a gun-shop owner to REFUSE to sell a gun to someone with a known and documented violent-felony record, it would NOT be legitimate to refuse to sell someone a gun because the customer was gay.

      (Even in cases where there WAS potential harm, or even a record of ACTUAL harm, I would argue that the constitutionality of refusing to sell the gun would depend on the nature of the PARTICULAR harm. I could not justify refusing to sell a gun to a convicted embezzler whose only offense was doctoring paper and shuffling accounting records, and who had no previous record of violent crime. It would be easier justifying a refusal to sell computer hardware, an internet connection, and accounting software. And I have trouble justifying the denial of voting rights to anyone with any kind of criminal record.)

      The nudity-in-the-park case is obviously different, but could be susceptible to a similar “What harm?” argument: e.g., naked people running through the park or across a beach could present a driver distraction and therefore a traffic hazard, depending on particular circumstances. OTOH if it were clearly marked as a NUDE beach or park, and if the element of hazard were removed — say by privacy fencing or geographic isolation or whatever — then I would see no impediment, even if kids were present. The parents would presumably make the decision to take the kids or to keep them away.

      As for visceral reactions … absent a “What harm?” justification, i.e., if the ostensible justification for discrimination is PURELY based on visceral reactions (superficial rationalizations notwithstanding), then there is no constitutional basis for discrimination. Re visceral reactions, I would recommend Justice Sandra Day O’Connor’s concurring opinion in “Lawrence v. Texas”, where she deals with just this issue, granted only with respect to homosexual sex, but her argument in that part of her opinion has more general applicability than just to the “Lawrence” case.

      Besides all the above, if discrimination is going to be permitted on the basis of an “icky-ness coefficient”, then we are back to segregated lunch counters, rest rooms, drinking fountains, etc., etc., for the very same reason. To this day, there are people, especially (though not exclusively) in the Deep South who have a visceral reaction to any kind of physical proximity to black people, and whose animus is based on a subjective “icky-ness coefficient”. I KNOW YOU ARE NOT ONE OF THESE PEOPLE AND THAT YOU ARE NOT ADVOCATING THIS. I’m just saying that, logically, the subjective animus / visceral reaction / “icky-ness coefficient” slope is VERY slippery. Hence my argument that the “What harm?” question has to be answered with reference to objectively examinable / verifiable data.

  • Nicely done, Jim. Agreed that “choice or no choice” is a diversion and really isn’t relevant, even if some bystanders have found it easier to accept the humanity of (or merely take pity on) people they feel haven’t chosen to vary from the common path. I see this ease as a deficiency on the part of the onlooker, not on the part of the people being evaluated.

    The comment I often offer re. “choice” is that I was raised in a particular religious tradition and didn’t have any influence on that environment. But I remain with that tradition by choice, not mandate. I could abandon it; I could choose another tradition; and whether I did or not would _still_ not validate discrimination against me on the grounds of religion.

    • Yes … that’s an even better example than my polio-kids one. Choices that entail no harm — meaning objectively observable, verifiable, “investigate-able” harm to others — do NOT constitute legitimate basis for discrimination. If I choose to use a gun for an armed robbery, am caught, tried, and convicted of a felony, it’s legitimate to discriminate against me in various ways (which ways can be debated). But armed robbery works harm to the community.

  • J W Lung

    It’s not about discrimination. All laws discriminate.

    “Civil Rights” in the broadest sense include all of the freedoms guaranteed Americans by the U.S. Constitution. Freedoms of press, assembly, religion, speech, association all are civil rights. The right to property is a civil right.

    Whether or not “homosexuality” is innate is, or should be, the central question to be answered in the controversy over the “civil rights” of persons who identify as “homosexual.”

    The Supreme Court has determined that there are certain groups of persons that the laws of the United States and the several states may not treat differently. If those groups of persons fall within a “suspect classification,” there is almost no way they can be treated differently. Race and national origin are two of these suspect classes. Gender has for all purposes been recently added to the list.

    Laws that discriminate upon the basis of race, at least where minorities are concerned, are essentially forbidden. This is as it should be. But it should be noted that the freedom of the rest of us who are not included in the protected class is thereby diminished. Our choices, both as individuals and the body politic, are restricted. The coercive power of the state, including the power to fine or imprison, is brought to bear to ensure the rights of the minority are not impaired.

    Race, national origin, and gender are suspect because these categories are incidents of birth. If “homosexuals” are born that way, then they should be protected from laws that treat them differently.

    If reasonable persons can conclude based upon the available evidence that “homosexuality” is not innate then the “civil rights” discussion changes considerably. For example, the freedom of mental health professionals provide therapy to persons who want to change their behavior certainly should not be impaired.

    We should be having a discussion as a people and as a society over whether or not “born that way, can’t change” is true.

    • “Whether or not “homosexuality” is innate is, or should be, the central question to be answered in the controversy over the “civil rights” of persons who identify as “homosexual.”

      I disagree. As I argued in the post, whether LGBTQ is chosen or not turns out to be irrelevant, from the standpoint of constitutional rights. (The question is undoubtedly an interesting research topic, but from a CONSTITUTIONAL standpoint, it is irrelevant.) Rather, is homosexuality like having a contagious disease or buying a gun with a felony record, i.e., the key question is “What harm?”

      As for the suspect classification business … yes … everything you say is true if the matter is to be dealt with from a “strict scrutiny” standpoint. Then you would have to determine whether LGBTQ people are a “discrete and insular minority” that has historically experienced animus-based discrimination. But i did not bring up the level-of-scrutiny issue, you did. Absent circumstances that justify the curtailment of constitutional rights (e.g., being forbidden to buy guns if you have a felony record), EVERYone, irrespective of whether or not they are part of a footnote-4 minority, are presumed to have equal rights. White European multi-billionaires are not part of such a minority, but they have constitutional rights. Like the issue of choice, the level-of-scrutiny issue is a red herring.

      “The coercive power of the state, including the power to fine or imprison, is brought to bear to ensure the rights of the minority are not impaired.”

      But, again, that is true of ANYone. I’m a white guy, fairly affluent, but if someone attempts to abridge my freedom of speech without just cause (e.g., falsely yelling “Fire!” in a crowded theater), they will be subject to criminal penalties. Again, you insist on making this a footnote-4 / level-of-scrutiny issue, which is a separate matter entirely. Gay rights do not, and should not, depend on gay people being part of a footnote-4 “discrete and insular minority”. They may. They may not. In either case, that is a separate issue. As for freedom being diminished … yes … but that is true of ANYone living in ANY society. With 2 people on a desert island, the freedom of both will be diminished. The Constitution codifies and rationalizes how that negotiation on the extent of each person’s freedom is to take place.

      “If reasonable persons can conclude based upon the available evidence that “homosexuality” is not innate then the “civil rights” discussion changes considerably.”

      The fact that “reasonable persons can conclude” differently is prima facie evidence that the issue as to the volitional choice of sexual orientation is not settled. Until it is — until “data not dogma” settles the issue — then LGBTQ people should presumptively have the same rights — including rights of marriage and adoption — as the rest of us. Prejudging the issue in the absence of dispositive evidence is not helpful.

    • But even if it should some day be conclusively demonstrated that homosexuality is a chosen behavior, that conclusion would still not be relevant absent a parallel demonstration that that choices causes objectively demonstrable harm to society. Otherwise, the choice to be gay would be like the choice about which side you part your hair on.

  • “If the jury is out, then why, pray tell, should the UMC change its ordination standards and bless same-sex unions?”

    The UMC has a perfectly free & inalienable “free exercise”-clause right, as a church / denomination, to deal with same-sex unions however it wishes. How any religious organization addresses the gay-marriage issue is a matter that lies on the “Church” side of Mr. Jefferson’s “wall of separation”. What would NOT be legitimate would be for the government at any level to violate the “establishment” clause by attempting to dictate what Church policy should be. To the government, marriage is just one more type of CIVIL contract, not essentially different from a mortgage or a cell-phone service contract, because the “establishment” clause of the 1st Amendment gets government out of the religion business. The religious aspect of marriage is the exclusive province of religious organizations.

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