I appreciate Dan Johnson’s taking the time to comment on my New York Times essay “Gay Rights and the Race Analogy.” Unfortunately, his reading of my essay is careless, and his alternative proposal is confused.
My aim in the original essay is fairly narrow: I argue that people who support antidiscrimination laws that cover sexual orientation and gender identity—and I happen to be one of them—need to do a better job of arguing for them. Specifically, we need to do more than simply say that businesses “must serve all comers,” because that’s false, and we need to do more than point to the history of race discrimination, because that history, while instructive, is different from the current situation in salient ways. As I wrote in the original piece:
When civil rights laws were passed, discrimination against blacks was pervasive, state-sponsored, and socially intractable. Pervasive, meaning that there weren’t scores of other photographers clamoring for their business. State-sponsored, meaning that segregation was not merely permitted but in fact legally enforced, even in basic public accommodations and services. Socially intractable, meaning that without higher-level legal intervention, the situation was unlikely to improve. To treat the lesbian couple’s situation as identical—and thus as obviously deserving of the same legal remedy—is to minimize our racist past and exaggerate LGBT-rights opponents’ current strength.
Johnson seizes on the last line to accuse me of thinking that “equal protection” is a “reverse popularity contest,” where only the unpopular get equal access. He writes, “Corvino concludes that LGBTs are currently just too darned popular to deserve protection from discrimination.”
I neither conclude nor believe any such thing. Rather, I conclude that LGBT people are not “obviously deserving of the same legal remedy” as blacks (emphasis added). As noted above, I actually support antidiscrimination laws that cover sexual orientation and gender identity. But I think we need a better argument for them than “because … segregated lunch counters.” In the original post I make a plea for nuance and fine distinctions; that plea is lost on Johnson.
But Johnson’s confusion doesn’t end with his misreading of my position. Johnson bases his argument on “equal protection.” That’s an odd approach for someone defending antidiscrimination law. For one thing, the Equal Protection clause of the 14th Amendment constrains the actions of the state, not those of private business owners. (Johnson’s later reference to US Supreme Court decisions like Windsor, as well as to various tests the Court uses for heightened scrutiny, suggests that this basic error runs throughout his piece.)
Except for certain very specific exceptions, a business owner—say, a photographer—may choose to decline a job for any number of reasons. Perhaps she has too many bookings that day. Perhaps the event is outdoors, and she only does indoor events. Perhaps the client is a nudist, and she prefers not to photograph nudes. Perhaps the event includes lots of children, and she finds children annoying. Perhaps she’s worked with the client before, and she finds him annoying.
She can legally decline for all of those reasons, and countless more, except for those specifically prohibited: generally, sex, race, ethnicity, national origin, and religion; sometimes others, depending on the jurisdiction, including marital status, sexual orientation, and gender identity.
That’s why it’s false to say a business “must serve all comers.” A business owner may legally refuse a customer for no better reason than that she doesn’t like his hat—unless the hat has religious or cultural significance, like a yarmulke or a Sikh’s turban, and she’s refusing for that reason. So while antidiscrimination law is motivated in part by a desire to promote equality, it does so by giving certain groups specially protected status.
I agree that LGBT people are worthy of that status, and in my essay I propose a reason why: like racial minorities (although in different ways, and to a different degree), LGBT people have been “systematically, unjustly excluded from certain institutions and services.” I don’t develop the argument at length, because it’s a 1,000-word piece, and I had other fish to fry.
Johnson, however, takes me to task for “fail[ing] to address another obvious, often-cited analogue between LGBTs and African Americans: being LGBT or an African American generally do not affect one’s ability to contribute to society.”
I certainly agree with his premise, but I have no clue what effect it’s supposed to have on the argument.
Surely all of the following have “ability to contribute to society”: those who are planning an event on a day when the photographer is already booked; those who have outdoor events; nudists; those whose events include children; and those who have previously annoyed the photographer. But none of these groups are covered by antidiscrimination law, nor should they be.
I’ll say it again: A business owner may legally turn down clients for a wide variety of reasons. When that happens, it doesn’t mean that the client lacks “ability to contribute.” If anything, lacking certain kinds of ability may be a reason in favor of singling people out for special protection: Anti-discrimination laws often explicitly include disability status.
None of which is to deny that anti-LGBT discrimination is wrong—very wrong, wrong in ways I’ve long argued against. Nor is it to deny that the law has an important role to play in addressing that discrimination. But the details matter. Antidiscrimination law is more than just “equal protection,” private business discrimination is not covered by the Equal Protection clause, and “ability to contribute to society” is a strange rationale for special legal status.
John Corvino is Professor and Chair of Philosophy at Wayne State University in Detroit. Read more at his website.
Thanks for clarifying your position.
It’s true I think the factors a legislature should consider when deciding whether to enact anti-discrimination laws for a certain group are often similar to the factors for deciding whether to grant a group heightened scrutiny under the Equal Protection Clause. That’s why I’m borrowing those “heightened scrutiny” factors in order to argue for LGBT anti-discrimination legislation. Those factors are: “A) whether the class has been historically subjected to discrimination; B) whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society; C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group; and D) whether the class is a minority or politically powerless.” Windsor v. US, 699 F. 3d 169, 181 (2d Cir. 2012) (internal citations and quotation marks omitted). Furthermore, “[i]mmutability and lack of political power are not strictly necessary factors to identify a suspect class.” Id. To be clear, I’m *not* trying to make a legal argument that the Equal Protection Clause applies to non-state actions or anything like that; I’m making an argument in favor of anti-discrimination legislation, and I’m just borrowing from reasoning in Equal Protection jurisprudence to make it.
Just in the interests of further clarity, do you agree that one factor to consider when granting heightened scrutiny or deciding whether to enact anti-discrimination legislation is the “B” factor listed above — i.e., “whether the class has a defining characteristic that frequently bears a relation to ability to perform or contribute to society”? If so, I don’t think we have any substantive disagreement.
Again, thanks for your response.
Following up on my question… Are you saying it’s fine for courts to consider the “B” factor (ability to contribute to society) when deciding whether to grant heightened scrutiny under the Equal Protection Clause, but legislatures shouldn’t consider the “B” factor when deciding whether to enact anti-discrimination laws? Or are you saying Equal Protection jurisprudence is wrong and courts shouldn’t even consider the “B” factor (ability to contribute to society)?
Hi Dan. What I’m saying is that I don’t see how factor B, “ability to contribute,” is particularly helpful in the current context.
Unlike the sex-discrimination case in which that factor arose (Frontiero v. Richardson), those discriminating against same-sex couples in wedding services are not doing so mainly because they think that gay people are less able to contribute to society; they’re doing so because they don’t want to participate, even indirectly, in same-sex weddings. (They’re generally perfectly happy to sell other products and services to gay people.) So If we’re going to argue that they shouldn’t be allowed to discriminate, I think we’re better off focusing on factor A–history of discriminatory treatment.
Frontiero v. Richardson involved a female Air Force officer who sought to increase benefits for her husband as a dependent. The Court held that the idea that a man cannot be his wife’s dependent impermissibly treats female officers differently than similarly situated male officers. Here’s the relevant passage:
“And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”
Thanks for the exchange.
So how would you explain why it’s wrong to discriminate against a straight person on the basis of sexual orientation? After all, there’s been no history of discrimination against straight people. Wouldn’t you need the “b” factor to explain why that sort of discrimination is wrong?
Re: the “not participating” point — Isn’t discriminating against a gay wedding discrimination on the basis of sexual orientation? To quote Justice Kagan, ““If you prevent people from wearing yarmulkes, you know, that’s discrimination against Jews.” Likewise, if you’re discriminating against people getting gay married, that’s discrimination against gays.
I certainly agree that discriminating against a gay wedding is discriminating on the basis of sexual orientation, for the reason Kagan and many others have noted: the activity is closely tied to the status.
On the first point: I think it’s important to make a distinction between whether it’s morally wrong to discriminate and whether we ought to have a law prohibiting the discrimination. Suppose there had never been any discrimination at all on the basis of sexual orientation–that gays and lesbians and other sexual minorities had always enjoyed full equality. In that case, we would not need laws prohibiting discrimination on the basis of sexual orientation any more than we currently need laws prohibiting discrimination on the basis of left or right handedness. And I wouldn’t want such laws: Why get the government involved at all, unless it’s necessary for addressing some problem?
By the way, you might enjoy a post I put up yesterday, which addresses these issues from a different angle:
http://whatswrongcvsp.com/2015/10/15/guest-post-from-john-corvino-bake-me-a-cake-three-paths-for-balancing-liberty-and-equality/
Thanks again for the exchange.
*mic drop*
This is a very good response to Dan Johnson. However, I do feel you make one critical error when characterizing the way anti-discrimination laws function.
You write, “So while antidiscrimination law is motivated in part by a desire to promote equality, it does so by giving certain groups specially protected status.”
This is false. Anti-discrimination laws work by saying certain characteristics cannot serve as the basis for chossing between customers, employees or renters. These characteristics are ones which are held by all persons. Everyone has a race, sex, sexual orientation and gender identity. Further, the way case law has developed surrounding discrimination because of religion, it extends protection to people who identify as atheists as well as anyone who can cite a specific religious faith they belong to. In short, no group is given specially protected status. Rather, all people enjoy the same ability to be free from certain types of discrimination.
The problem with your characterization of how these laws function is that it rests on the assumption that members of empowered majorities enjoy this freedom without the need for a law mandating it. Therefore, the law provides them no extra protection, and the law is characterized as providing special status for some groups (this is also the basis of the claim that anti-discrimination laws provide special rights).
That argument ignores the fact that disenfranchised groups are simply obtaining the same treatment which the majority takes for granted.
Thank you for this point. You’re quite right that anti-discrimination law technically covers certain groupINGs rather than certain groups. Thus, it prohibits discrimination on the base of race, for example, but doesn’t give special protection to one race over another–any racial classification becomes suspect.
On the other hand, as you also point out, both the motivation and the de facto result is to offer special protection to otherwise marginalized groups, precisely because “members of empowered majorities enjoy this freedom without the need for a law mandating it.”
I struggled with how to word the sentence you cited, because I didn’t want to use the phrase “special protection,” which sounds too much like “special rights.” Obviously, anti-discrimination laws cannot run afoul of the 14th Amendment.
All of which is to say that I need to find a better, more precise way to make the same point, that point being that anti-discrimination law limits the kinds of reasons that business owners can use to turn away customers. In that sense, it does offer a kind of *special* protection.
Again, thank you for the comment. (Dan, I’ll respond to your comment above later; I’m rushing off to class now.)
So, a business owner can refuse service to a Mets fan because of her hat?
In reply to Kyle:
See http://blogs.findlaw.com/free_enterprise/2011/11/have-you-reserved-your-right-to-refuse-service.html
“Courts also tend not to favor arbitrary discrimination. In the past, judges have used consumer protection, unfair business practice, and tort laws to punish such practices.
None of this means that you absolutely cannot refuse to serve a customer. It simply means that you need a legitimate business reason to do so.”
See also http://oag.ca.gov/publications/CRhandbook/ch4
This is California law: “The Unruh Act prohibits all types of arbitrary discrimination, and not just discrimination based on sex, race, color, religion, ancestry, national origin, age, disability or medical condition. (78) The Unruh Act also prohibits discrimination based on personal characteristics, geographical origin, physical attributes, and individual beliefs.”