Posted by Eugene Volokh: Will judges be barred from participating in the Boy Scouts?
As blog readers know, I strongly oppose anti-sodomy laws; I tentatively support gay marriage; I think same-sex couples should be allowed to adopt; and I'm generally quite skeptical of government discrimination against homosexuals. At the same time, I think the anti-gay-rights forces have a very good point when they worry about gay rights interfering with the rights of those who oppose homosexuality. We know that many parts of the gay rights movement aren't just after liberty from government oppression, or even getting equal treatment from the government. They also want to ban private employers and other entities (landlords, places of public accommodation, and others) from discriminating against homosexuals, which is to say to require them to associate with homosexuals. Many (though not all) in the gay rights movement want to ban private associations, such as the Boy Scouts, from discriminating based on sexual orientation. Most recently, there is now talk of prohibiting judges from belonging in groups that discriminate based on sexual orientation, which may bar them from [1]participating in the Boy Scouts. The gay rights movement has won many victories, and has influenced many people even where it hasn't (yet) won -- such as in the gay rights debate -- by essentially asking "How does it hurt you?" How does it hurt me that two homosexual adults can have consensual noncommercial sex with each other in their own home? How does it hurt me that they can get married, or adopt children? (One can say that it may hurt their children, but many people, myself included, are skeptical about that.) But that question ignores those gay rights proposals that would reduce the liberty of others -- and it ignores the way the various proposals are, as a matter of practical politics, interconnected. As a logical matter, it's possible to bar the government from discriminating based on sexual orientation, but to leave private parties free to do so. But as a psychological matter, many people's judgments about what private people (or government officials acting in their private capacity) may do are affected by what the government may do. The more homosexual relationships are legitimized, the more many (not all, but many) people in the middle of the political spectrum on this question will condemn even private discrimination against homosexuals. The analogy to race discrimination that gay rights advocates often cite is really quite apt here. People who oppose homosexuality are understandably worried that their views will become as stigmatized -- and acting on those views will in many ways become as illegal -- as racist views are now. And one way to fight this possibility is to fight it early, for instance in the marriage debate, rather than to wait until that's lost and the gay rights movement moves even more firmly towards restricting the private sector. Now of course if one thinks that the law should ban sexual orientation discrimination by private employers, private landlords, and private associations like the Boy Scouts, and that judges and other government officials should be barred from participating in the few heterosexual-only groups that remain, then one would hardly worry about these effects. Also, if one thinks (as I do) that some of the gay rights proposals are good ideas but others (such as interference with judges' ability to participate in the Boy Scouts, or outright prohibition on discrimination by the Boy Scouts) are bad ideas, one might conclude that their benefits outweigh the speculative though not implausible costs that these good proposals might politically enable the bad ones. And, finally, one should realize that sometimes fighting too implacably against every proposal may prove counterproductive: For instance, if the anti-gay-rights movement tried hard not just to reverse Lawrence v. Texas but actually start harshly enforcing sodomy laws, the result would likely weaken the political power of the movement rather than strengthen it (and of course I think such an approach would be morally wrong as well). But in any event, one should acknowledge that the "It doesn't hurt you, so why should you object?" argument omits an important point: The broad array of gay rights proposals would restrict the liberty and equality of those who oppose homosexuality -- and this array is more of a package deal than we might think, since the more proposals the gay rights movement wins on, the easier (generally speaking) it would be for it to win on other proposals. We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- many libertarians, for instance, would do so by distinguishing restrictions on government action from restrictions on nongovernmental action. But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable, so that if the gay rights movement gets to that point (wherever the point is), it will in practice end up also getting more, and cutting into the liberties of others. And it thus makes perfect sense that those who oppose some of those proposals would fight all of them, precisely because once some are enacted, the others will become politically more appealing. So the result is pretty sad: Maybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality. Perhaps it's clear that one of the options, despite its flaws, is better than the other; as I said, I strongly support some parts of the gay rights program and tentatively support some others, despite the risks that I identify. But I have to acknowledge that my opponents on this do have legitimate reason to worry about their liberties. References 1. http://www.christianitytoday.com/ct/2004/132/21.0.html _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
