For Immediate Release: October 12, 2009
Contact: Jeff Reynolds
Phone: (801) 355-1272
SUTHERLAND INSTITUTE ISSUES STATEMENT ON ANTI-DISCRIMINATION PROPOSAL
Salt Lake City Council Urged to Reject Proposed Ordinances
SALT LAKE CITY — October 12, 2009 — Salt Lake City Mayor Ralph Becker recently released the details of two different ordinances designed to ban employment and housing discrimination based on “sexual orientation” and “gender identity.” In response, Sutherland Institute reaffirms its commitment to marriage and family as matters of public policy. We continue to draw a negative policy correlation between attempts to advance “sexual orientation,” “gender identity,” and other similarly vague legal notions and all honest attempts to protect the meaning of marriage in the law.
While we commend Mayor Becker and his staff for their openness and willingness to discuss their recent proposals adding “sexual orientation” and “gender identity” to Salt Lake City’s nondiscrimination ordinances – and thank him and his staff for honestly and sincerely seeking Sutherland’s input and advice as their processes have unfolded – nonetheless, we oppose the inclusion of these terms in the law anywhere in the State of Utah.
The experiences of other states, namely California, Massachusetts, Connecticut, and Vermont, prove that the inclusion of terms such as “sexual orientation” and “gender identity” in state and local laws is used, ultimately, to denigrate the meaning of marriage. Seemingly rational and everyday concerns, along with more egregious concerns affecting the very safety and justice to be afforded every American, are manipulated and twisted by political activists and activist judges to reach beyond the limits of legal reason and the public good.
Mayor Becker’s new anti-discrimination proposals only open the door to such legal abuses in Utah.
In meeting with the Mayor’s staff, Sutherland encouraged them to emulate the compromise found several years ago on the state hate crimes bill (Criminal Penalty Amendments, H.B. 90, 2006). Conservatives and liberals collaborated to craft a law that addressed all concerns without the inclusion of vague language such as “sexual orientation” or “gender identity.” Furthermore, we alternatively recommended that Mayor Becker might choose to propose non-binding resolutions that could include vague language and yet do no harm to the integrity of state law.
As the current proposals stand, Sutherland opposes them.
Proposed ordinances are legally vague
First, the proposed ordinances are legally vague. Redundancy is not clarity. To define “sexual orientation” as “heterosexual, homosexual, and bisexual” is redundant. The definition does not clarify the words – it is the equivalent of stipulating that a specter is a ghost.
Proposed ordinances are dangerously broad
Second, the proposed ordinances are dangerously broad. The inclusion of the term of legal art “perceived as” disallows any serious response to an accusation of discrimination. If an accuser simply perceives himself to be homosexual – or perceives the accused to have acted discriminatorily based on the accuser’s perception of himself – the accused has no basis for an honest defense against the charge of discrimination, and neither does the city’s appointed “Administrator” have reason to consider any defense if the ordinance allows anyone to subjectively “perceive” anything.
Proposed ordinances are inherently unjust
Third, the proposed ordinances are inherently unjust to the parties they seek to regulate. Businesses that operate within the city limits of Salt Lake would be compelled to abide by “civil rights” laws that do not exist elsewhere in the state. While it is not uncommon for individual municipalities to differ in a variety of business regulations, it is uncommon – indeed, unprecedented – for businesses to comply with a variety of “civil rights” laws.
The terms “sexual orientation” and “gender identity” have no place in Utah laws, especially not in employment and housing laws. Sutherland addressed these specific concerns earlier this year as the State Legislature was pressed by homosexual activists to pass similar ideas as a part of the “Common Ground Initiative.”
Regarding employment concerns, Sutherland has stated:
No person is legally fired for who they are – although plenty of people are legally fired for inappropriate behavior, incompatible personalities, incompetency, or anything that gets in the way of personal performance or team productivity. This is the nature of at-will employment in a free society …
Culture, not force of law, controls our workplace relationships…
The law protects men and women and children – male and female all. Only in sex professions are an employee’s sexual life relevant to the workplace. In every other work environment, the issue of workplace protections based on one’s sexual preferences is, in itself, discriminatory. It turns an otherwise irrelevant part of an employee’s work experience into something more important than the job itself – and does so through force of law.
Again, our long-standing cultures determine what is appropriate or inappropriate in the workplace, not the force of law. [i]
Regarding housing concerns, Sutherland has stated:
No person can be legally denied housing for who they are – they can be legally denied housing for what they do as tenants, rental experiences based on prior references, or a landlord’s perceptions about how the applicant would fit into the culture of the housing project or surrounding community. These standards apply to every rental situation in a free society, regardless of someone’s private sexual behavior…
The real question for a landlord, in these cases, concerns her perceptions (visual, communicative, or intuitive) about the rental applicant. Would this applicant fit the culture of the housing unit, complex, or neighborhood? Based on hard experiences, the landlord may perceive that the applicant will have too many disruptive parties, too many strangers coming and going, or even undisciplined children. In the protection of private property rights in a free society, all landlords have this right to subjectively, but reasonably, screen all tenant. [ii]
Sutherland does not condone discrimination against any human being on grounds of innate and universal human traits addressed by civil rights laws. Nor does Sutherland condone irrational discrimination against any human being for chosen behaviors.
For these reasons and others, Sutherland recommends that the Salt Lake City Council reject the proposed nondiscrimination ordinances. In the event the council passes and the mayor signs the ordinances, Sutherland encourages the State Legislature to negate the ordinances and take steps to prohibit local governments from establishing such unusual standards in binding laws.
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[i] Frequently Asked Questions: Same-Sex Marriage and “Gay Rights” <http://www.sutherlandinstitute.org/uploads/FAQ-gay_rights.pdf> published May 28, 2009, by Sutherland Institute, 4-5.
[ii] Ibid., 5.
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Brilliant.
Thank God our constitutional right to fire gay guys remains intact.
http://www.thetruant.com/2009/09/straight-man-fired-from-job-for-being-gay/
Creating a special law only makes logical sense to sexists.
LOL @ Nixon, and MichaelR, only those lucky enough to not face the reality of discrimination in the workplace can make such oversimplified statements as yours.
I’m actually not entirely in disagreement with Sutherland on this one, but more because I agree the laws necessary to stop discrimination are already in place. But it’s foolish and even a bit inhumane to pretend that gay people don’t get fired when an employer finds out they are gay, even if the person doesn’t “advertise” the fact. I know if my livelihood were effected in such a way because an employer couldn’t act like a grown up, and decided to fire me because I didn’t belong to their church of choice, I’d want a course of action to take for restitution, if for no other reason to make the employer pay for being so petty.
On the other hand, there’s no denying that this is, as Sutherland says, making laws for certain individuals. I guess the question is, should we do that? And if you can answer no without pretending this isn’t a reality for gay people in the workplace, then you’re being reasonable. If you’re pretending this doesn’t actually happen to gay people, then you’re being obtuse for an ideology.
I think Bob Aagard’s response to Sutherland’s release is worth reading too: http://bobaagard.blogspot.com/2009/10/taking-on-sutherlands-pro-disrimination.html
Jason, your comment is very reasonable.
I don’t think that using the law for revenge against a “petty” person is the best way to go, but I see what you’re saying about people getting fired for being gay. Also, it seems to me that a person wouldn’t want to work for an employer that didn’t like them anyway because of who they believe they are deep down inside.
Should we have laws for certain individuals? I don’t think so. I haven’t thought through every possible scenario, but it seems like all laws should apply equally to all people.
Piccolo, it’s a really interesting discussion to have. And though I would consider myself a supporter of equality for gay people my entire life, there are many people in Utah politics who would disagree, due to my lack of support for Hate Crimes Legislation.
I recognize the paradox in myself… I think it’s abhorrent that anyone would attack or harm another human being because that person is gay, or even just different from them in any way. I also think it’s abhorrent (and ironically self defeating) for an employer to fire a qualified individual for being gay, or for a renter to deny rental to a gay person.
I just think, using Hate Crimes Legislation as an example, making a law has actually worked against the underlying problem gay individuals face in our culture. No law changes attitudes, and there are many examples of actual detriment to changing culture attitudes because such laws are put in place (simple way to say it: those who irrationally hate gay people are more inclined to do so, and teach their children to do so every time the read about a hate crimes law put into place).
But it’s also a fact that the laws made during the mid-century civil rights movement did have significant effect on creating a more equality oriented environment for other minorities.
So my question I guess is, which course of action (making laws, or just working toward the much slower goal of changing cultural attitudes), recognizing neither is going to be perfect, and also recognizing a lack of equality, brings us closer to true equality for all?
Great question, Jason. I don’t know that I know the answer, but, in this case, I lean toward non-government solutions. Any law, especially like this one, creates unintended consequences that are impossible to predict completely. I do think that creating a protected class of any people creates problems, even creating greater inequality because they have rights particular to their circumstances. This kind of policy could wreak some measure of havoc on our at-will employment system, which I think overall is a good system.
I don’t hate gay people at all; I think we should love them just like anyone else. I just don’t think that these kinds of anti-discrimination/hate crimes laws are the way to address the problem. True, civil rights laws have done much good for racial minorities, but I don’t think the scope and scale of their situation resembles the current situation at all. Also, I see an equal amount of hate from the gay rights community as I do from the non-gay community. Everyone needs to learn to love and respect each other.
I like this conversation and I wish more people, especially in communities like ours, would be open to having it.
Personally, I know that any law that effects any group or class of people differently from another is unjust because it would have to assume that certain people inherently deserve to be treated somehow differently.
If you want to make cultural changes, the very WORST possible way is to try to force it on people. Why? Because nobody has control over their beliefs. Just like your sexual preference is not something you deliberately choose, the things you do or do not believe are not a choice that you make. Your behavior is always a choice, but your genuine beliefs are not. The best that you can ever expect to do is to deliver the most memorable positive message you can to help tip the scales until people start to finally be convinced. Once their beliefs change, they can start to effect the people around them into perpetuity.
Prejudice and bigotry dressed up as moral principles is still prejudice and bigotry.
Sutherland states: “Again, our long-standing cultures determine what is appropriate or inappropriate in the workplace, not the force of law.”
This same argument was used in defense of racial discrimination in the South for many years. A vast majority of those who practiced racial discrimination as part of their “long standing culture” rationalized and justified their beliefs and actions based upon their perceived moral Christian values as well.
Southerland states: “Sutherland does not condone discrimination against any human being on grounds of innate and universal human traits addressed by civil rights laws. Nor does Sutherland condone irrational discrimination against any human being for chosen behaviors.
Based upon this carefully worded statement in the context of Sutherland’s opposition to Salt Lake City Government’s Anti-Discrimination Proposal one can only deduce that Sutherland does not accept homosexuality as and “innate” or “universal” human trait. Nor does Sutherland hold discrimination against acting or behaving “gay” to be irrational. No further comment is required since those comments speak for themselves.
Southerland states: “The experiences of other states, namely California, Massachusetts, Connecticut, and Vermont, prove that the inclusion of terms such as “sexual orientation” and “gender identity” in state and local laws is used, ultimately, to denigrate the meaning of marriage”.
This argument is specious on its face since Utah amended its constitution to outlaw same sex marriage.
It appears to me that the Sutherland Institute one more time is “grasping at straws” to defend a position that is fast becoming indefensible in today’s modern society.
- “only those lucky enough to not face the reality of discrimination in the workplace can make such oversimplified statements as yours.”
You’d think you knew everything about me and my life, the way you assume things. However, I may have oversimplified my statement, so allow me to clarify:
Discrimination will never, ever be positively changed by forcing acceptance on people. Assuming that your sexual preference is not a choice that you make, which it’s clearly not, and assuming that no sexual preference is in any way “better” than any other, and further assuming that the insistence that any one sexual orientation is superior to any other would be irrational bigotry, it’s simple-mindedness that verges on childlike logic to think that these ordinances are going to have a positive effect on anything. So, logically, creating special ordinances for the purpose of granting differentiated treatment for persons based on their sexual orientation presumes that persons of one orientation inherently deserve to be treated differently than those of another, which is sexist. Emotional reactions to bigotry may make this differentiation seem necessary, but rational thought reveals that such concepts perpetuate the very bigotry that caused the emotional response.
Therefore, creating a special law only makes logical sense to sexists.
@ MichaelR, I see what you’re saying, and from an academic/ideological sense it makes sense. But it seems dependent on denying that those with one orientation face very different challenges than those with another, and IF our governing bodies are going to regulate (I know you wish they wouldn’t… so just IF) then I believe they have a responsibility to foster fairness in that regulation, not simply sit idly by reciting Hayek, waiting for cultural norms to change. Imagine if we’d done that with a woman’s right to vote? There would STILL be cities that didn’t allow it (in Idaho, heh).
And @ Piccolo. I think it’s irrelevant to point out that you see “a lot of hate” coming from the gay community. You can’t begrudge them anger, and I’m certain there was a fair amount of “hate” coming from the black community circa the civil rights movement. Inequality is inequality. If we’re going to call it a bad thing, it’s a bad thing, and we shouldn’t pick and choose who and in what situations equality is our goal. It should always be our goal, even if those we hope to treat equally aren’t protesting inequality with a cheery smile on their face.
MichaelR I follow your argument, but there is one important point on which I beg to disagree. Those in the GLB community do not want to be treated differently in the culture they live in and in society as a whole, they want to be treated the same as everyone else.
The statement that: “Discrimination will never, ever be positively changed by forcing acceptance on people” can be easily refuted by the positive effects upon racism and discrimination the civil rights laws of the 1960′s have had on our nation. That is not to say that bigotry and racial discrimination still do not exist, but clearly much progress has been made since that era.
To see my point, turn your argument around. Let’s say for example that in San Francisco heterosexuals are being denied employment and housing based solely upon their “sexual orientation”. Would laws that prevent those people from being discriminated against, ie. giving them the same rights as others be dismissed as a “special law” and giving those heterosexuals differentiated treatment?
Your point about the difference in challenges for the different sexes is understood, and I can agree that IF we are to regulate, we aught to do it fairly. The concern that I have is that ordinances such as those in question don’t appropriately address either the difference in challenges nor the overall concept of fair treatment under the law. The latter for the reasons I’ve already described. I don’t see them addressing the differences in challenges between the various sexual orientations because everything from the concept to the verbage is focused on the DIFFERENCES rather than the SAMES, which will do nothing to change behavior or beliefs, but will go a long way to make people more dishonest, more petty, and more manipulative, which are at the core of the challenges in question. I know you’ve touted the ideas behind these ordinances for the merit of their speed in accomplishing the goal of equal treatment, but, while I MIGHT MAYBE agree with that merit, there is no doubt that a forced cultural change has no permanence and is far less effective than an educated, natural cultural change.
Ok, so from an employers stand point. If you have an employee that deals with the public say Retail Sales and comes out of the closet so to speak and everyone now knows you are gay, and in turn people no longer feel comfortable doing business with you/them because you/they are gay, and you live in a conservative area like Cache Valley. The employer should still have the right to fire the employee based on performance on the job which may have resulted from the fact he is gay. That employee could be losing business for the company if there are many customers that know he is gay and not feel comfortable doing business with them so instead they go to the competition where that isn’t an issue, in todays economy you can’t afford to have an employee that could cost you sales.
There needs to be some accountability on the employees side, the issue I see arrising is no matter what the reason is givin to firing someone even justly they could use the “GAY CARD” as sort of an insurance policy to hold as leverage for a suit against the employer and claim the reason they were fired was sexaul orientation when in reality it is how there performance has changed as a salesperson and loss of business to the employer.
@Topgun
Over at The Truant, we had a similar issue. After much deliberation we fired that black guy because at the end of the day, He was black and people refused to grant him interviews.
Moreover, he wasn’t hiding his blackness very well. So We can certainly sympathize, or empathize. Anyway, we felt bad about firing his ass.
Great example, Nixon.
lol.
Apt!