Subject: EQUAL RIGHTS OR GAY RIGHTS???
From: [email-masked]
Date: Tue, 26 Sep 1995 00:15:25 -0400

The attached article by Nigel Ashford has been submitted to New Lesbian and
Gay Voice for distribution.  He advances a libertarian positions that are
usually not heard from others within the Lesbian and Gay Community, and you
may find them of interest.  Dr. Ashford is Principal Lecturer in Politics at
the University of  Staffordshire, England, United Kingdom.   This paper is
derived from a lecture before the Oxford Civil Liberties Society, Oxford
University, Oxford, England.  (We accept opposing viewpoints as well.)

Hal Gordon, who wrote the two previous submissions from New Lesbian and Gay
Voice on Oscar Wilde and Roger Casement, has another article available.  It
is a short piece on  City Lights Books -- a literary and gay landmark in San
Francisco -- which you may find intriguing.   Mr. Gordon is also working on
an article about Britain's possibly gay Prince Eddie -- No!  Not that one,
but his great uncle, the grandson of Queen Victoria, who was suspected of
being Jack the Ripper.

None of these items have been previously published, and the authors would
appreciate your customary payment for such works.

If you would like to receive the Gordon items, please contact New Lesbian and
Gay Voice at the return address for this message.   Please identify the
publication which will receive the item.

We would also appreciate receiving information as to when one or more of
these items are published.

EQUAL RIGHTS, NOT 'GAY RIGHTS'

		By: 	Dr. Nigel Ashford.

After the semi-successful campaign in the United Kingdom to reduce the age of
consent for homosexuals, British gays are debating what should be the next
campaign.  Many are advocating that the priority should be
anti-discrimination laws.   Such a policy ignores the essential distinction
between equal rights with straights and special rights for gays.  This
article advocates the former, and opposes the latter.   The term 'Gay Rights'
blurs this significant distinction. To the extent that gay rights simply
means that gays should be afforded the same rights as straights, it should be
strongly supported, but when it  implies rights that  belong only to gays but
 not to all straights, it should be vigorously opposed. 'Equal  Rights, not
Special Rights' has unfortunately become a slogan of  the  Christian Right.
However they do not mean it, as is demonstrated [in England] by their
opposition to an equal age of consent.  Gays , and all those committed to
equality under the law, must restate and recapture this principled position. 

Equal rights would mean:
- an equal age of consent for gays and straights 
- the right of gays to serve in the military
- the legal recognition of same sex unions,
- the right of adoption by gay families
- the right of inheritance for a gay partner if the other dies intestate,
without a will

A philosophy of equal rights would oppose: 

-hate crime legislation, which creates an additional penalty if the crime was
an expression of hatred against gays
- legal  prohibitions on anti-gay speech, unless it is threatening, in which
case it is covered by the existing laws that apply to all
-laws making discrimination against gays illegal for private persons in
employment, housing and so-called public places

The three principles that underpin this approach will be presented, followed
by the case against anti-discrimination laws.   It should be emphasised that
state discrimination against gays should be ended and gays should be entitled
to the same rights in law as straights, the principle of Civil Equality,
while private discrimination should be condemned but not outlawed.

THREE PRINCIPLES

1. 'Gay Rights' are neither Human Rights nor Civil Rights. 

A Right is a moral entitlement.  A Human Right means that it  belongs to all
human beings, regardless of nationality, gender, race, religion, or sexual
orientation. Human Rights must meet three criteria:
 1) they must be universal, applying to every human being , wherever and
whenever they lived
 2) they are absolute, except when they come into conflict with each other
 3) they are inalienable, and so cannot be surrendered, eg no-one can sell
themselves into slavery.  
These human rights were expressed by John Locke as 'life, liberty and
property', in the French Declaration on the Rights of Man as 'liberty,
property and security', and in the American Declaration of  Independence as
'life, liberty and the pursuit of happiness'.  
 
Civil Rights, or Civil Liberties, seek to embody these human rights into law,
turning them into positive rights that can be claimed.
Every person has an equal right to be free from interference by the state and
others, in aspects such as freedom of speech, freedom of contract and freedom
of association.

If Gay Rights are rights that only belong to gay people by virtue of being
gay, ie they belong only to members of a particular group rather than to all
individual human beings,  they cannot be human rights because they do not
meet the  necessary criteria, notably the universality principle.  Thomas
Sowell has discussed how the black civil rights movement shifted from
demanding equal rights to special rights  in his book Civil Rights.

2.  It is not the role of the law to impose morality.  

This has been one of the biggest debates in political philosophy, between
liberals and moral majoritarians.  John Stuart Mill in On Liberty articulated
the principle that people should be allowed to do as they pleased unless they
do harm to others: the harm principle. This principle has been used
extensively to promote equal rights for gays, eg in the Wolfenden Report.  At
the time Mill was strongly opposed by James Fitzjames Stephens.   A more
recent debate was between Lord Patrick Devlin, who thought that the law
should express condemnation of that deplored by the majority of people,
against Oxford philosopher  H.L. A. Hart, who took a more liberal position.
 In such debates, gays have sided with the liberal view that it is not the
role of the state to impose a particular conception of the good, even one
endorsed by the majority. The law exists to enable people to go about their
business, as long as they do not interfere  with the rights of others.
 Ronald Dworkin expressed this principle of liberal neutrality as: No person
is entitled to elevate his /her beliefs about how others should act above
those of anyone else.   It is very important to emphasise that for the state
to allow  an action is not to favour it.

3. Maximise the private.

The distinction between private and state (usually expressed as 'public') is
extremely important in a free society.  Unfortunately the definition of the
private has become narrowed to include only the person's home, and sometimes
not even that.   The distinction between private and public should be
ownership, not who goes there.  'Public' should mean government owned, not
open to the public, as in a bar or club.   Private property means that
government has no right to interfere with that property unless someone's
 rights are being denied.  A wide definition of private and a narrow
definition of public (state) is the best protection for gays.   The
alternative is that government can legislate and  interfere in areas open to
the public eg at the Stonewall Inn, or sexual activity in cinema clubs, or
sado-masochistic sex on private property (Operation Spanner).  Those who
control the power of the state will use it for their own purposes and
preferences.

ANTI-DISCRIMINATION LAWS

Anti-discrimination laws would outlaw discrimination on grounds of sexual
orientation in employment, housing and 'public' areas.
This was proposed in the US federal Employment Non-Discrimination Act (ENDA),
and exists in many US states and local jurisdictions.  The Labour party
conference in 1983 endorsed the idea, and many gay activists want this
proposal to be at the forefront of gay campaigns.

Such laws should be opposed on the grounds that they would  threaten civil
liberties, society in general, and gays.

I. The Threat to Civil Liberties

Firstly, they attack freedom of association, the freedom to associate, and
not to associate, with whomever we choose for whatever reason, good, bad or
none.  These reasons can be criticised but if some motives are made illegal,
then one is no longer free.  Anti-discrimination laws would force a Catholic
to rent his property to  someone whose activities he views as abhorrent. A
fundamentalist school would have to hire homosexuals against their deepest
beliefs (the cause that brought Anita Bryant into anti-gay crusades) .  A gay
bar owner could not employ only gay barmen and women.  Gay clubs could not
exclude straights.  Do not believe that these laws would only apply against
straights. In  Provincetown, Massachussetts, a male gay bar was refused a
renewal of its alcohol licence because it  excluded women and straight men,
as was a lesbian bar in New York for its policy.  In San Francisco a gay
landlord was prosecuted for prefering gay men to women as tenants.  The
principle of freedom of association does not defend anti-gay discrimination,
 but recognises that bigots have rights too. 

Secondly, they undermine freedom of expression.  Anti-gay discrimination will
occur, but employers and workers will  not be allowed to express their true
motives and will find other excuses to act.  Employers would become legally
responsible for the  speech of their own employees, as in the case of the
Irish worker compensated for the anti-Irish jibes of his fellow workers.  Of
course employers should seek to create an environment  in  which all workers
feel able to carry out their works in a relaxed and comfortable environment,
but it should not be the job of the employer to seek to regulate the speech
of his or her workers unless it affects the business. 

Thirdly, they are an attack on private property rights.  One should set own
one's rules on one's own property.    In the famous US Supreme Court case,
Hardwick versus Bowers,  Hardwick was found guilty of anti-sodomy laws in his
own home.  Local anti-gays tried to prevent a lesbian retreat in Mississippi.
 Freedom of association and respect for privacy can only be protected by
property rights, which allow individuals to carry out acts between consenting
adults free from invasion. The recognition of private property rights is one
of the great safeguards for gays, which they threaten at their peril.

Fourthly, they deny the free exercise of religion.  A church which believes
that homosexuality is a sin should not be forced to employ someone who does
not accept a basic principle of the church.  Church members and others of
course could (and should) advocate that the church should change its position
on homosexuality.  However the church should be allowed to  exercise its
religious principles,  as long as it does not seek to translate them into law
simply because they are its  principles.   Laws would bring the state into
the doctrinal affairs of the different churches and cause intense resentment
amongst them. 

II. The Threat to Society

Firstly, they would increase unemployment.  Unemployment is the biggest
economic problem facing not only Britain but every western society.  Most
economists agree that a major factor in unemployment is what they call
rigidities in the labour market.  These are things which discourage employers
offering work and workers accepting it .  Anything which raises the cost of
employment reduces the number  of employment opportunities.  One example is
the minimum wage which discourages employers from taking on inexperienced
workers whose job productivity is difficult to predict.  Another
discouragement is employment legislation which makes it more difficult to
sack a worker.  If it is difficult to remove workers, then employers will be
more cautious in taking on new workers.   The fear of litigation if a gay
claims to have been sacked on grounds of sexuality will discourage employers
from offering employment.  

This is not to advocate or defend discrimination.  Discrimination has a price
in the labour market because the employer is not employing the best, and will
lose out to his competitors.  This argument is  developed in detail by the
Chicago economist Gary Becker in The Economics of Discrimination.

Secondly, they would undermine the political system.  Such laws will
contribute to  what Arthur Schlesinger describes as the Balkanisation of
politics.  Government becomes a battleground between special interests
seeking to use the power of the state to further their own interests.  In the
process, the public interest  is ignored.   Every group seeks to get its nose
in the public trough, regardless of the cost to the rest of society. Special
interest legislation  divides society by emphasising differences in
 interests rather than common interests.  This argument is developed more
fully by public choice writers such as the Nobel Prize winner James Buchanan,
and Mancur Olson in The Rise and Decline of Nations.

Thirdly, they will make the UK a more litigitious society.  There is now
considerable concern in the US  with the massive costs in litigation, which
raises the cost of products,services and employment considerably.  See Walter
Olson, The Litigation Explosion.  There is now a strong movement for tort
reform to reduce the problem.  Anti-discrimination laws create yet another
basis for additional litigation.  Already considerable sums have been awarded
in the UK to those who claim some sort of discrimination, but little
attention is given to who pays and the  broader costs to society.
 
Fourthly,  such laws will lead inevitably to quotas, government mandated
preferences for government favoured groups.  Despite claims to the contrary,
and sometimes explicit references in legislation banning quotas, they are an
almost inevitable consequence of such legislation . Why?  These laws penalise
motive, but motives are  difficult to establish. If the motive is illegal ,
discriminators will not admit  it.  Those seeking to implement the laws move
from a concern with 'disparate treatment ', ie with intent, to 'disparate
impact' ie with effects.  The question then becomes how  many blacks or women
or gays are employed.

To avoid costly litigation, compensation, and bad publicity, employers impose
quotas.   Even without legislation, the Bar Council is demanding 5% ethnic
representation in barristers chambers.  This destroys equal treatment because
prospective employees are not treated equally on the grounds of merit but
because of certain characteristics.   It is this which has created resentment
and backlash against affirmative action.  It may not be the intent of the law
to create quotas but it is an unintended consequence. 

 III. The Threat to Gays

Firstly, they will perversely reduce employment and housing prospects for
gays.  If you are an employer making an appointment,  you are aware that you
may have to sack the worker in the future , because he or she is
unsatisfactory, or because business requires it.   The employer may be
reluctant to employ  someone gay, or who appears to be gay, because the
employer faces the prospect that the employee would  claim that he  or she
was dismissed because of his/her  sexuality . Better to avoid the risk and
not employ the person in the first place.  Similarly, one of the biggest
fears of any one renting out property is how  difficult it may be to remove
the tenants  if they fail to pay the rent or damage the property.
 Anti-discrimination laws adds another potential obstacle to removing them.
 This creates an incentive to the owner to favour renting to a straight
rather than a gay, providing he/she can find another  reason to favour the
straight.  It would be yet another example of the perverse effects of laws
leading to the opposite to that which was intended. 
   
Secondly, they will contribute to a backlash against gays.  In 1992 there
were two referendums on gays in the states of  Oregon and Colorado.  The
former was defeated , while the latter passed.  The difference was that the
Oregon proposition sought to condemn homosexuality in the state constitution,
  while the Colorado one sought to ban local authorities from passing
anti-discrimination laws for gays.  The moral majoritarian slogan against
special rights for gays resonated with ordinary straights because there was
an element of truth in it, whatever the motivation of its promoters.
  Appeals to equal rights will appeal much more to straights that appeals to
special rights, and anti-gays will be quick to blur the distinction.

Thirdly, they reduce the self-esteem of gays by creating a  victim mentality:
that gays have no power but are dependent on the state to protect them.
 There is now a debate between  
victim and power feminism, between those who portray women as victims who
need protection against men, and those who emphasise the power and potential
power of women.  The power approach would be best for gays.  The psychology
of the victim  leads to   resentment not betterment.  As Andrew Sullivan of
the New Republic noted, "By legislating homosexuals as victims, it sets up a
psychological dynamic that too often only perpetuates cycles of inadequacy
and self-doubt".  Gays are then led to assume that they cannot succeed
without special protection, and straights will assume gays are successful
because of preference not merit.  The difference between power and victim
approaches is reflected in the debate on the existence of the  Pink Pound.
 On the one side are those who emphasise the existence of substantial
economic resources in the hands of gays, and view gays as success stories. On
the other, the victim gays seek to deny the power of the pink pound and
prefer to present gays as  poor and down trodden.

Fourthly, anti-discrimination laws rely on the power of government, yet
government  has been the chief oppressor of gays.  Gays will always be a
permanent minority. It is very dangerous to rely on laws passed by the
majority to protect them.  These laws would legitimise interference in
private matters.  These are more likely to be used against gays in the longer
term .  The state should be seen as a threat to gays, not an ally.

CONCLUSION 

Discrimination against people simply because of their sexual orientation
exists and is wrong, but it is not the role of the law to correct every
wrong.  Law is not, and has not been , the  solution to sexual and racial
discrimination and will not be for sexual orientation.

There is no easy or permanent solution to anti-gay discrimination.  Gays can
however seek :
- equality before law
- maximum freedom of association 
- social disapproval of discrimination.

Gays must have equal rights to straights.   They are entitled to nothing
less- but also nothing more.  

SUGGESTED READING 
Bruce Bawer, A Place at the Table: The  Gay Individual in American Society,
 Simon & Schuster, 1994. 

Gary Becker, The  Economics of Discrimination, University of Chicago Press,
1974.

Richard Epstein, Forbidden Grounds: The Case Against Employment
Discrimination Laws,  Harvard University Press, 1992.

Sean Gabb, What To Do About Aids, Libertarian Alliance  Pamphlet No.12, 1989.

Brian Mickelthwait, Gay and Lesbian Rights: Property is Better than Politics,
Libertarian Alliance, Political Notes No. 69, 1992.   

Mancur Olson, The Rise and Decline of  Nations, Yale University Press, 1982.

Walter Olson, The Litigation Explosion, Plume, 1992.

Richard Posner, Sex and Reason, Harvard University Press, 1992,
chapter 11.

Jonathan Rauch, Kindly Inquisitors, Chicago University Press, 1993, chapters
5,6.

Thomas Sowell, Civil Rights: Rhetoric or Reality, Morrow, 1984 .
 
Andrew Sullivan, 'The politics of homosexuality', New Republic   
May 10 1993.

'Gay Rights or Human Rights?', Economist   February 6 1993, pp.15-16.