On Gay Rights and Government Intervention

I read a blog recently where someone responded to UT's Anti-ENDA legislation. Two respondents surmised that by disallowing business to discriminate on the basis of sexual orientation, the Government is over stepping its bounds and interfering.

The original article:

http://jlooney.com/2009/02/18/the-politics-of-discrimination/


Two words really come to mind here - Government Intervention.

When is it appropriate?

I'm fairly libertarian on many issues. But I believe that there are times when, what would otherwise be seen as, extreme government intervention is warranted to effectuate a change that is ultimately necessary for the survival of the republic, the survival of the market, or to maintain the social contract upon which the republic was founded.

In each of these instances a culture usually develops that is so counter to the direction that must be taken, that the intervention must be more extreme than the counter culture in order for the government to exercise its supremacy in the matter.

This very thing always teeters the republic on a razor's edge. It does so because of popular sovereignty.

If massive government intervention is required, it is because there is a large segment of the population that is unwilling to culturally move in the direction that the rest of the population/republic is going. The government has to wait until it has enough social momentum, and political capital to move on the issue or else it risks dividing the republic asunder. This is true, even where there the thing being forced to change, is in gross and flagrant disregard of, and is repugnant to, the social contract, and the founding principles and documents of the republic itself.

But it ultimately leaves the government riding the wave of social change as opposed to being on the forefront of shaping public opinion. By the time government steps in to intervene, a large enough section of the population has already made the cultural shift such that the government isn't fighting its entire sovereign base, but is rather fighting those elements of the sovereign base, who refuse to move in step with society, with the republic, and with the social contract.


I grew up in the American South. My state and school district were some of the last places in this nation to racially integrate. As late as 1989 we were still busing little white children and little black children to each other's neighbourhoods for school. Such drastic state intervention, has been deemed necessary for the very reason expressed by Ben (one of the respondents). The Government IS Chusing Our Friends.



Yes yes I know they cannot force us to be friends with each other, BUT the cross town busing, and the summation of that experience served to mix two conflicting cultures enough that the fear, anger, hurt, and divisions betwixt the two, that was allowed to develop over centuries, began to be torn down.

People my age (Im 33) and younger are much more racially integrated, and/or racially neutral than my father's generation. And even my younger sister, who is 13 years my juniour, has fewer racial hang ups than myself and my friends.

In short, the great experiment is working. It is breaking down walls, and it is slowly, creating an American South where there is less animosity between whites and blacks. It has made our world safer and created more opportunities for young black Americans. And it has begun to equalise a playing field that has been skewed for hundreds of years.

Is it perfect? NO!, not by any stretch of the term. Could it have been done by less drastic ways. Honestly. I do not believe that it could. I honestly think that enough whites were too set in their ways to even consider voluntary integration. In fact, we know they were. We saw George Wallace on every television in America.



Could have it been done sooner? I don't think it could have either. I think that men and women like Thurgood Marshal who chipped away at the social order that was so repugnant to the foundations of our republic, those men and women were on the forefront, they were the ones to created the social momentum that gave the government its impetus for action. They greased the tracks so that the government could later act drastically to force the rest of the republic to move forward to protect the founding principles and social contract.

So what does this have to do with Gays?

Just like with racial integration the gay population is asking the government to intervene on its behalf. Gay's feel that their liberty interest is being trampled, and that they are being treated unequally before the law. They feel that this is in violation of the social contract, that it is in violation of the founding principles of the republic, and that it is in violation of the 14th amendments guarantees of due process and equal protection. They feel that they are targeted for unequal treatment by both government, and private entities.

They believe that because they are an unpopular minority, who are targeted for unequal treatment, that they qualify, under the government's rules, as a class that must be protected from discriminatory behaviour.

I think it is pretty much a given that gays are class of persons. That they are a minority, that they are unpopular, that they are targeted as a class for discrimination and violence by individuals, and that they are targeted for discrimination, as a class, by private entities. Anyone who hasn't accepted the clear and convincing evidence of this by now, need only look to the left of this column.

It is fairly blatant that in the past gay's have been targeted as a class for discrimination by the government. SCOTUS has moved to equalise this. They decriminalised homosexual behaviour, and struck down a state constitutional amendment aimed at taking away gay's rights to court access and remedies.

There is a current legal battle in the 9th circuit to determine if they were and are being targeted as a class, for discrimination, by the government. It is alleged by gays, that the current state constitutional bans on same gender marriage were floated specifically to target their class for unequal treatment before the law, and that such were proposed as a result of animus towards them.

In other places it is argued that ENDA type legislation is necessary because gays are targeted as a class, for employment discrimination.

The broader question then becomes:

Government Intervention? ? ?

Do Gay's deserve government intervention?

Is discrimination against them, repugnant to the social contract, the principles of the republic, and our founding documents as gays argue that it is?

Like racial inequality before the law was. . . sexual orientation inequality before the law is, at a crucial point in its own history. Enough of the population has shifted towards the side of treating gays and gay relationships equally before the law, that there is now a targeted push by gays and gay supporters to get the government to intervene. Unlike racial inequality, however, gay's have not yet built enough social momentum for the government to have the political capital to take up their cause in full.

As witnessed by prop 8 however, the government has not yet been armed with a majority mandate for gay equality. BUT is there enough momentum to act without tearing the republic in two? That is the million dollar question. I personally think that in the very near future there will be enough momentum, and that the government will act to protect gays from discrimination. It is up to gays and their supporters to continue building that momentum. The next few years will be crucial in the fight for gay rights. As more states adopt ENDAs and same gender marriage, shift will bring the government enough momentum to drag the rest of the country kicking and screaming into the modern era with respect to gay rights. And it will.

Ultimately we may not see Thomas Monson, Mitt Romney, or Mike Huckabee on the six-o'clock news baring the doors to the court house, nor standing at the doors to of state governments to deny gays the right to work there, but I think radical government intervention will happen. It will have to happen. Only by making an extreme social and economic disincentive to Anti-gay discrimination will the government effectuate a change in culture. It is after all, a culture war that is being fought, and winning it means to do away with the culture of hating gays because they have same gender sexual relations, do away with the culture of fear, and begin to foster a culture of understanding. much the same way that happened in race relations. It is for this, that government intervention will happen.