SADOW: Solutions In Search Of Problems

Hey kids, guess what? A poll came out that showed an overwhelming proportion of Louisianans said that Ebenezer Scrooge should not treat his employee Bob Crachit so unfairly at work. That fictional creation parallels results from an actual recent poll, this part paid for by groups that seek to have those who practice homosexuality be given preferential public policy treatment, which revealed that – believe it or not! – almost all Louisianans think that those who identify themselves as homosexually-oriented should not be denied housing, nor not be protected from bullying in school, nor not be fired from jobs with secular employers. Meanwhile, dog bites man.

One group leader expressed surprise that the margins in each case were almost 90 percent or higher expressing these attitudes. Where has he been? It only confirms what each of us knows already, that attitudes like these are a matter of common sense and simple human decency. For the life of me, for example, I can’t understand why anybody would want to see somebody being bullied, for any reason. We are called to love our neighbors, and while there’s not universal agreement on that, to anybody sentient in this society from birth they should have realized there is a huge consensus that, at a personal level, an overwhelming majority think we must treat people fairly as we hope they will do the same for us.

Which is where the policy-making confusion enters. Groups behind the state-the-obvious questions say they will use these results as evidence that there is support for state laws, for example, that ban firings in the workplace over sexual orientation and in renting dwellings. (Although any change to anti-bullying would be nonsensical; the law already prohibits any behavior that is bullying regardless of motive.) But theirs is an apples-and-oranges comparison, because the questions did not address those kind of issues. They may have asked about people’s feelings about these things, but they did not ask them whether they thought that government should be empowered to restrict these kind of activities.

As previously noted, these are crucially different questions because the “protected class” involved defines itself on the basis of expressions of attitude, not by any innate, immutable quality. An enduring myth is that there can be no discrimination in American society. In fact, government allows discrimination in all sorts of ways – people with higher incomes are taxed at a higher rate, very tall people can’t be astronauts, a play that calls for a role of an older white female can disregard applicants who are black and/or male and/or young, etc. The question is whether there is a compelling reason consequential to the private activity that by allowing government to regulate it would cause a significant diminution of the liberty of individual given the discretion to discriminate on that basis.

In the case of people with characteristics that are genetically inherent, or that (in the case of some disabilities) were unfortunately thrust upon them by disease or injury, there are extremely few instances where this discrimination can be justified. But when it’s a case of sexual expression, because that involves not genetics or uncontrollable circumstance but rather a set of attitudes where the holder of them has the choice whether and when to express them behaviorally, greater individual latitude and lesser government intervention is justifiable.

For example, must a child care center continue to employ an individual who continually expresses to all around, staff, parents, and children alike, the opinion that pederasty should be accepted as a normal, loving human interaction? (Note that if the speech was limited only to about changing the law against sex with minors, legally this actually could be protected speech under civil liberties terms.) Any law that protected the behaviorally-defined class of “sexual orientation” would apply in this instance, even if it should shock no one that being unable to prevent such behavior would harm this business.

Certainly no large employers, and almost no other employers, or no landlords with large holdings, and almost no other landlords, care how their employees or tenants express themselves sexually. The only behavior they care about is whether the work gets done satisfactorily or the rent shows up on time on an undamaged property. As for those very few (according to the poll) that would let personal feelings on this issue get the better of their business sense, for any employee or tenant subjected to this, there are plenty of places their money and talents will be wanted, but to empower government to force their acceptance by these exceptional cases simply gives government too much power that invites excessive and inappropriate regulation of individual freedom, putting society on the slippery slope at the bottom of which is tyranny.

So the only novelty of these poll results is probably something their backers did not wish to be realized: that their recommended policy changes are solutions in search of a problem. Attitudinally, few people demonstrated that they would treat those who expressed homosexual preferences any differently in employment or housing, and given the threat to liberty that the suggested overbroad solutions present, this confirms why it is a good idea for state law to resist the trendiness of making practitioners of behaviorally-defined “sexual orientation” or “gender identity” a protected class in these matters.

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