This file includes new notes as well as those originally published in 1997.  In the iUniverse version, the numbers start at 352.

Chapter 5 Running Footnotes (John W. Boushka; tally; match to original text on xchap5 file )

 1 Bill Boushka, "Military Ban: Constitutional Questions and Policy Proposal," Ground Zero News, March, 1995, p. 17. See also notes by editor Frank Whitworth.

2 "What is GLIL," The Quill, Oct., 1994. "Classical liberalism" refers to the notion that individual rights and expression are the most important value in a political system.

3 Advocates for Self-Government, Atlanta, 1988. Please call 1-800-932-1776 for detailed information. (

4 See David Boaz, Libertarianism: A Primer (New York: Free Press, 1997) pp. 20-21. These pages present, for comparison, the standard political science charts (how Communism-Left completes a full circle with Fascism-Right, and how (leftist) Liberal, Libertarian, Populism, and "Conservatism" (old-fashioned usage) fit into a simple chart. Boaz uses the term "statism" as a practical synonym for "authoritarianism."

5 Harry Browne, Why Government Doesn't Work (New York: St. Martin's Press, 1995).

6 Perry Deane Young, God's Bullies (New York: Hold, Rinehart and Winston, 1982), contains a chapter on secretly closeted gays within the religious right and the Reagan administration, pp 132-154. True, conservative gays and Republican gays tend to take the attitude that you have to prove you're good enough as a person to belong regardless of the prejudice against "queers" as a "group." The closet and double-like becomes a source of feeling "special" or connected. Imagine this "Uncle Tom" attitude, carried to extreme, if applied to blacks during segregation. Also, see J. Jennings Moss, "The Outsiders," The Advocate, Oct. 29, 1996.

7 David Boaz and Edward Crane, "The Collapse of Statist Values," Market Liberalism (Washington, Cato Institute, 1993). However, in his Primer, Boaz uses the term "libertarianism" more broadly, reflecting an attitude of "classical liberalism" with great (but not radical or anarchistic) restraints on government, especially federal government.

8 Libertarian Party candidate (1996) for Pennsylvania Attorney General, T. Collins, wrote (in 1994) a white paper proposing the notion of "state citizenship" to avoid federal income taxes.

9 In practice, libertarians tend to favor term limits and are somewhat divided on campaign finance reforms; they would dislike adversarial politics but not want to interfere with candidates who can spend their own money.

10 The Christian concept corresponding to "cooperation" is "hospitality." The concept of "spontaneous order" was developed by F.A. Hayek and others: "Made Orders and Spontaneous Order" by Hayek, and "Two Kinds of Order" by Polanyi, in David Boaz (editor), The Libertarian Reader. (New York: Free Press, 1997).

10a Ch. 5 P 228 : Some libertarians favor eliminating all taxes! Good to see Minnesotans ("People's Socialist Republic of Minnesota," before Jesse Ventura) standing up to sports owners using public money (tax or gambling) to pay players' salaries rather than provide basic services. One newspaper letter-writer proudly announced his self-concept is strong enough to do without the Minnesota Twins! Another good question for libertarians is the practice of charging employers premiums for unemployment insurance.

In his 1996 presidential campaign, Harry Browne maintained that we can afford to get rid of the Federal income tax (and replace it with nothing) if we drastically reduce the Federal government to the purposes which, taken as literally as possible, the founding fathers apparently intended (especially when they wrote the Ninth and Tenth Amendments). These functions would include national defense, foreign policy, and a federal judiciary and perhaps (very minimally) oversight of interstate commerce. Browne suggests a national asset sale to pay for these functions.  

10b Ch. P 228, Section 02 - general comment. Libertarianism defines "morality" in modern terms of personal accountability and non-harm to others. Older forms of moral thinking postulated that the individual must meet certain cultural obligations such as military service and parenting (through the family) before the person can be respected or even have significant rights as his or her own person. This was founded on interpretations of religion, survivalism, and political expedience. Pre-requisite "obligations" somehow covered up inequities between families (but we know this didn't work, but we might see this kind of thinking, well represented by columnist Pat Buchanan, for instance, resurface).

10c  There are a few libertarian-leaning law schools, especially George Mason University in Fairfax, Va., known also for its Institute of Humane Studies, which provides grants for individual freedom policy education and policy research and invites students to summer forums, 

11 Andrew R. Cecil, Introduction, The Ethics of Citizenship from Lectures on Moral Values in a Free Society (The University of Texas at Dallas, 1980), p. 16.

12 Boaz, Libertarianism, op. cit., pp. 64-70.

 13 James Hutson, "The Bill of Rights and American Revolutionary Experience," from A Culture of Rights, ed. by Michael Lacey (London: Cambridge University, 1991).

14 Robert Bork, The Tempting of America (New York: The Free Press, 1990), p. 123.

Robert Bork, Slouching Towards Gomorrah (New York: Regan, 1996), p. 6.

15 Michael Lerner, The Politics of Meaning (New York: Addison-Wesley, 1996).

16 Andrew Peyton Thomas, "Can We Ever Go Back?" The Wall Street Journal, Aug. 9, 1995. Following the reasoning of Bork, Thomas and North, I wonder if I have compromised my own moral body because (although still HIV-negative) I am no longer allowed to give blood or donate organs because of my past sexual behaviors. As with reproductive rights, and drugs, is my body the property of the whole community or only of me?

17 Supporters of the recently vetoed bill against late-term partial-birth abortions describe horrific procedures where babies are murdered with only their heads still within the womb (before they are legally born, when their killing is still legal abortion). Certainly I abhor such procedures: the woman's control of her body is just a hypothetical point in these situations.

18 In the 1976 film Logan's Run, everyone was executed at the age of 30!

19 William Murchison, Reclaiming Morality in America (Nashville: Thomas Nelson Publishers, 1994), p. 11.

20 Former National Gay and Lesbian Task Force President Melinda Paras always spoke of fundamental collective "fairness" as an underlying moral value. It's not fair for the handicapped to be denied accessible parking spaces, and it's not fair for gays and lesbians to be discriminated against (speech for Fairfax County Va. GAA, April 1996).

21 George Will, Statecraft as Soulcraft: What Government Does (New York: Touchstone, 1983). P. 31 discusses conscription in the context of self and community interest.

21a Ch. 5 P. 233, pr. 1. That is, self-actualization, for some people, implies self-transcendence.

22 Dean Hannotte, introduction to Paul Rosenfels, Homosexuality: The Psychology of the Creative Process (New York: 9th Street Center, 1971/1986), p. iii.

23 William Channing, "A Human Being Cannot Be Justly Owned," from Boaz, Libertarian Reader, pp. 88-91. This piece, to condemn slavery, argues self-ownership from the exclusivity of property rights and from the moral equivalence of rights and responsibilities.

F24 Joseph Steffan, Honor Bound: A Gay American Fights for the Right to Serve his Country (New York: Villard, 1992), p. 16.

25 Hillman, The Soul's Code, op. cit., p. 6.

26 Steffan, op. cit., p. 145.

27 Anthony and Cleopatra (1606); p.d.

MacKenzie, op. cit., p. 201, cites the Naval Academy Honor Code. The Code does not now require midshipmen to turn in others they suspect of cheating; however a midshipman resigned in 1996 out of conscience for failure to report a crime of one of his classmates.

28 Dean Hannote, We Knew Paul, Introduction (New York: Ninth Street Center), p. xiv.

29 Stephen Carter, "The Insufficiency of Honesty," Atlantic Monthly, February, 1996, pp 74-76.

30 David Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994), pp. 323-324.

31 Chai Feldblum, "Sexual Orientation, Morality, and the Law: Devlin Revisited," (Georgetown University Law School and University of Pittsburgh Law Review, 1996).

31a Ch. 5 P 235, pr. 4: Drugs like cocaine stimulate the activity or a brain catalytic chemical called dopamine. People become addicted when they cannot generate this activity naturally (as during sleep, sex, food, intellectual accomplishment, or plain "fun"). So we make "moral" issues over how people generate dopamine activity within their own brains!

You could say drug laws may keep about 20% of people who would otherwise drugs from using them. A similar argument can be made about prostitution and gambling laws. You believe they really work?  There is more about drug testing at

32 Peter McWilliams provides a detailed history of how our drug laws evolved and how they may even feed corporate "special interests." Peter McWilliams, Ain't Nobody's Business If Your Do (Los Angeles: Prelude, 1995), pp. 271-337. Or consider Richard Condon's 1960 novel, Mile High, in which organized crime conspires to bring about Prohibition in order to make a killing on it.

33 Newt Gingrich, To Renew America (New York: Harper Collins, 1995), p. 178.

34 In California, farmers have actually been forced to quarter National Guard units searching for marijuana, a clear violation of the Third Amendment.

35 New York state had tried a "zero tolerance" law in 1973; the subway was covered with signs "don't get caught holding the bag."

36 Government also abuses seizures in the environmental areas. James Bovard, "New Assault on Property Rights," The Washington Times, Oct. 24, 1996, p. A16.

36a Ch. 5 P 236 pr. 1 Picking on marijuana users is like the military's picking on gays, as the easiest (and most naive) "criminals" to user as prey for the politicians.

In 1997, the Virginia House of Delegates in the General Assembly has already voted to repeal its 1978 state law allowing the medicinal use of marijuana. NBC Dateline covered the asset forfeiture problem in a broadcast in January, 1997.  

37 William F. Buckley and others, "The War on Drugs is Lost," National Review, Feb. 12, 1996, p. 34.

38 Frank Herbert, Dune (New York: Putnam, 1965).

39 Robert Samuelson, "Anti-Smoking Hysteria," The Washington Post, Apr. 23, 1997, p. A21.

40 An appeals court in Philadelphia did strike down the 1995 "Communications Decency Act." {as did the Supreme Court in 1997).

41 Aren't people who get addicted to nicotine morally responsible for their own predicaments? Maybe not if they were deceived by false advertising. But when a litigant lost a wrongful-death suit, her attorney claimed, "we're taking personal responsibility to an extreme." Indeed we should!

Ch. 5 P 237, pr. 2: This means also that, in criminal trials, there would be no "insanity" acquittals, no twinkie defense, not even the "sleepwalking defense." A person answers for his own acts. Period.

42 But see Joan Taylor, "Child Pornography and Free Speech," Liberty, Jan. 1997, p. 38, for a discussion of the way the proposed Child Pornography Prevention Act which would criminalize the depiction of under-age sex even in computer-generated art (and who would determine who "looks" underage?) The "theory" is that prurient interest in children must be stopped.

43 There are four kinds of residential real-estate assumption: (1) full (when the second borrower qualifies and the first gets a novation releasing from liability (2) assigned, when the original owner is liable only for missed payments (3) simple (common with FHA until 1989) and (4) Subject-to, which leaves the original owner completely responsible forever. The common law rule against assignments holds an original borrower liable until the lender gives permission for assumption. Some left-wing writers have urged consumers with bad credit or with no credit to assume loans and insist that sellers "trust" them and not make them qualify.

In the late 80s, when real estate values were declining in some areas of the country, it was common for borrowers to “walk.” Lenders (often after takeovers and mergers or government rescues under the FDIC, following the notorious D’Oench, Duhme Doctrine) began to pursue them for deficiencies, sometimes after foreclosure sales for almost no value, for as long as 4 years after foreclosure (Wiedemer, A Homeowner’s Guide to Foreclosure, Dearborn Financial Pub., 1992).   Sellers in unqualified assumption situations would be exposed to deficiency lawsuits but this has not been reported much by the media.  See for some philosophical points.

43a Ch. 5 P 238, pr. 1. Of course, the "hate crime" designation could assist a prosecutor to make the legal finding of "malice" in a homicide case. CBS "48 Hours" did present, on September 30, 1999, an alarming account on the rise of hate groups in this country; it is shocking that a woman could be driven out of town and hunted down for intermarriage.

43b. “Hate crimes” legislation, in fact, strikes me as an attempt to have two wrongs make a right. The practical justification, in the case of gay-bashing, is that juries may let an accused off more easily if “homosexual panic” is allowed as a defense, so we need the counter-weight of hate-crimes designation (for gays).  I say, punish the crime according to its heinousness, regardless of the victim or of the excuses of the perpetrator. Trouble is, intent and state of mind and pre-meditation are well-established concepts of criminal law. I would encourage laws which treat “hatred” (on a case-by-case basis) as legally a form of premeditation (which wouldn’t have the “principle” problem of treating crime differently according to the class of the victim), but would discourage the reference to the category of the victim in determining the degree of malice.  (Remember the killer of Matthew Shepard was punished almost to the full extent of the law anyway.)  But in June 2000, the House passed a bill adding disability and sexual orientation to categories that trigger hate crimes consideration.   

44 Peter Unger, Living High and Letting Die: Our Illusion of Innocence (London: Oxford University, 1996).

44a Ch.5 P 239, pr. 4: Virginia Gov. George Allen wrote to me: "I believe that the historical husband-and-wife family is the very foundation of our society, and that the state should reaffirm the primacy of the time-tested family model whenever it is challenged or whenever alternative models are held out as its equivalent."

44b  But some historians maintain that, whatever the religious right claims to be in the Bible, the Western “nuclear family” did not become accepted as a social model until the time of Napoleon, and then during the Victorian era.  If women were regarded as “property” or as “inferior” it is hard to see how monogamous intimate marriages could provide much psychological sustenance.  

45 In some African cultures, women are so little respected as equals that female circumcision and clitoral mutilation is still practiced.

Ch. 5 P. 239 fn 45: One can turn the arranged-marriage issue around, of course. Learning to love an assigned partner can be perceived as the fulfillment of a moral obligation and sign of religious obedience.

46 Note the reunion of the Henry family at the end of Herman Wouk's War and Remembrance.

47 Don Feder, "Society's Stake in Defending Marriage," The Washington Times, July 17, 1996, p. A15.

48 Here's one amusing affront: Nate Penn and Lawrence Larose: The Code: Time-tested Secrets for Getting What You Want from Women - Without Marrying Them (New York: Fireside [Simon & Schuster] 1996).

48a The Census 2000 reports now that less than 25% of all households are traditionally married couples with children. The percent of unmarried couples was 1.9% and the number of single households raised 21% (since 1990). 

49 But some observers disagree that most middle class parents "need" two incomes. Shannon Brownlee and Matthew Miller, "Lies Parents Tell Themselves about Why They Work," U.S. News and World Report, May 12, 1997, p. 58. On the other hand, some sole-breadwinner fathers probably find genuine relief from the intimacy of child-rearing and fatherhood in long hours at work.

49a  According to a General Accounting Office (GAO) survey released in January 2002, woemn’s income had fallen further behind men’s between 1995 and 2001. 60% of males in corporate executive ranks had children at home, whereas only 40% of females did, a figure which suggests (to the chagrin of some) that the “mommy track” or even taking advantage of maternity leave materially reduces female advancement in the conventional corporate workplace.

49b Elizabeth Warren and Amelia Tyagi. The Two Income Trap: Why Middle Class Mothers and Fathers Are Growing Broke. New York: Basic Books, 2003. A major tenet of this book is that the two-income family has synergized with the bidding up of suburban housing prices, often trying to get the best school districts for children, with an end result that families with children lose most of their disposable income and wind up in debt.

49c  For an interesting employment discrimination case on Wall Street where female executives who took maternity leave say they were penalized and unable to compete with men who did not take paternity leave (or maybe single men) see ABC Nightline, Jan 18, 2006, “Six Women Sue Wall Street Bank, Allege Sex Discrimination: Employees Say They Have Been Passed Over in Promotions for Men,” at   The bank is Dresdner Kleinwort Wasserstein Securities LLC.

50 Barbara Vobejda, "Social Trends Show Signs of Slowing: Family Characteristics Appear More Stable" The Washington Post, Nov. 27, 1996, p. A3.

50a  Robert Kuttner, in an overview, “The Politics of Family,” for aspecial issue on family values in The American Prospect, April 8, 2002, writes cogently: “So there are basically two contending narratives about family. In the first, modernity itself ruined the family and traditional values are the cure… In the second, a lot of ugly realities were concealed by ‘traditiona; values’;  …,”  

51 Actually, southern Christian fundamentalism has sometimes stood up for the right of women to have opportunities of their own apart from homemaking their husbands. Christine Heyman, Southern Cross: The Beginnings of the Bible Belt (New York, Knopf, 1997), and Goodwin, op. cit.

51a  ABC “Good Morning America” has run a series on the controversy about working v. “stay-at-home” moms Feb. 22-24 2006. One point was that children of working mothers may learn independence earlier and benefit from knowledge of a mother’s as well as father’s career. Salaried working mothers often had difficulty with constant on-call expectations. Again, to me, the idea of being sexually attracted to someone who would become economically dependent always came across to me as an oxymoron.

References: (Linda Hirshman)

Mommy wars: video submissions to  ABC:

52 Ed Mickens, "Is There a Lavender Ceiling," Out, Dec. 1996, p. 150.

52a The Minneapolis Department of Health and Family Services conducted a survey in 1998 ("SHAPE") which reported that self-identified "GLBT" people showed a 41.3% achievement of undergraduate college degrees compared to 27.6% for self-identified "heterosexuals," and that 26.3% of GLBT's made over $46,400 a year compared to 17.5% for "heterosexuals." So maybe having fewer "responsibilities" (or more "disposable income") makes a difference. Rachel Gold, "Hennepin County study reveals income, education differences," Focus Point, July 7, 1999, p. 1.

53 Barbara Vobejda, "Day Care Study Offers Reassurance to Working Parents," The Washington Post, April 4, 1997, p. A1. The study was conducted by the National Institute of Child Health and Human Development. But Brownlee and Miller, op. cit., raise troubling questions about typical day care and the affordability of good day care. ABC “Good Morning America” on Feb 25, 2002 reports that many parents intentionally delay having children because of the availability and cost of decent day care.

53a Ch. 5 P 242, pr. 1: Kirk and Madsen (see bibliography) provide a lot of discussion of the psychological problems that follow when gays can spend their resources on themselves. They see this as contributing to the "narcissistic" attitude of many gays in what they expect in relationships. And Norval Glenn, in "A Texbook Case of Marriage-Bashing," (Policy Review, May-June 1998, p. 5) criticizes current public school texts for presenting heterosexual marriage as just another lifestyle "choice." Darned right, it's supposed to get special privileges from the unmarred (pay or play!)

53b Ch.5 P. 242 pr. 2. William R. Mattox, Jr., argues "With big families come big rewards," in an op-ed in USA Today, July 6, 1999, p. 13A. He mentions Allan Carlson, president of the Howard Center for Family, Religion and Society, as pointing out "that government old-age programs tend to disrupt the natural economic incentive for adults to invest themselves in child rearing. Carlson says that if Social Security did not rob Peter to pay Paul, Americans would be more apt to appreciate the social-insurance value of raising children," rather than focusing on the "cost" of child-rearing. For example, Asian-American children from large families do well in school because older siblings (with loyalty) tutor younger ones, rather than competing with them. But are people really supposed to have children (at least partly) to be taken care of in their old age?

53c  In September 1987, Chilton Corporation (a credit reporting company eventually bought by TRW), when pressured by new owners after a leveraged buyout to squeeze on the bottom line, eliminated flex-time and part-time and forced a number of employees with child care and day care problems to resign, whereas the single and childless employees relatively prospered in the coming storm. (I was working there.)

Ch. 5 P 243, pr. 1. The "flat tax" could still be child-friendly if it maintained a per-child exemption (not deduction). But should this be limited to two or three children? Should it be limited to legally married couples? There is a trade-off between helping children and (sometimes) discouraging marriage, and this is a Fundamental Theorem of Social Engineering.

54 The usual proposal is a $500 per child credit; some conservatives (Phil Gramm) have wanted this amount to be $5000! There is already a credit of up to $720 per dependent (maximum of two dependents) for day care expenses to enable a parent to work. See The Ernst & Young Tax Guide 1997 (New York: Wiley, 1996), p. 464. President Clinton has proposed college tuition tax credits for parents of dependent children, but conservatives generally claim this just drives up tuitions. See Pete Dupont, "Providing Fuel for Tuition Inflation," The Washington Times, Apr. 20, 1997, p. B1.

55 Nash, Time, op. cit. (see Ch. 3) and ABC "Nightline," Apr. 16, 1997.

56 Philip Lawler, "Sex, Marriage, Love, and Babies," The Wall Street Journal, Mar. 4, 1996.

56a Ch. 5 P 245, pr. 2. But "poverty" still requires that the priest derive his sense of identity from the teachings of the Church, not from his own head. The destructiveness of the priesthood marriage ban is well known.  

57 In the 1950's, "legal separation" was the penultimate remedy. Situation comedies (I Love Lucy) were built around couples that "fight," but up close and personal, I found the idea of fights (the few times I saw them in other peoples' families) terrifying.

58 Barbara Whitehead, The Divorce Culture (New York: Knopf, 1996), provides an interesting history of the transition from "vulgar" to "expressive" divorce as our society has migrated toward emphasis on personal fulfillment and "growth."

59 Back in the 1950's, Ladies Home Journal ran a column, "Can this Marriage be Saved?" by Dorothy Disney. 

60 There was a famous case (Bobbitt) in Virginia in 1993 where an abused wife mutilated her husband's genitals.

61 Sheppard and Kathryn Kominas, Accepting Ourselves & Others (Minneapolis: Hazelden, 1996), p. 321, 325-326. Also, Brian McNaught, Gay Issues in the Workplace (New York: St. Martin's Press, 1993), chapter "Homophobia and Heterosexism," pp. 47-64.

62 Ben Wattenberg, "The Grandfather Gap," PBS Broadcast, Apr. 18, 1997. The birthrate in the U.S. has dropped significantly since 1990. The question is posed, does public policy need to be rigged to encourage middle-class parents to have more children now?

63 The Titanic, history series on A&E Cable History Channel, Sept., 1996.

64 The Communications Decency Act of 1996 is discussed in Chapter 6 (overturned by the Supreme Court in 1997). In 1958, the Supreme Court ruled against the Los Angeles Postmaster who had tried to stop the mailing of a homosexual periodical on the grounds that homosexuality per se was obscene. Ed Alwood, Straight News: Gays, Lesbians, and the News Media (New York: Columbia University, 1996), p. 34.

65 Some Fairfax County, Va. parents tried to have The Washington Blade removed from the public libraries in the early 1990's.

66 "Writing rights," The Advocate, Dec. 10, 1996, p. 16.

67 Before World War II, Mussolini unashamedly "taxed bachelors" to help fund his pro-natalist ideas. Crane Brinton, A History of Civilization, (Englewood Cliffs: Prentice-Hall, 1960), p. 468. The Christian Coalition's Ralph Reed, in Contract with the American Family (Nashville: Moorings, 1995), correctly points out the burden of the IRS "marriage penalty" and, moreover, the provisions that (until 1996) denied homemakers the privilege of setting aside their proportion of family income in tax-deferred 401K's.

One subtle form of marriage penalty occurs on the Schedule D, Capital Gains and Losses form. A single person may subtract up to $3000 in stock market losses, but married persons filing separately may deduct only $1500 each. Of course, the cap on loss deductions raises interesting public policy questions of its own.

67a   In fact, Caesar Augustus, Roman Emperor around the time of Christ, severely taxed men and denied inheritances to men who were not married by age 25. In Roman society, the accepted age for marriage was 14 for men and 12 for women. But marriages were “arranged,” infidelity was often acceptable, and infanticide (rather than abortion) was sometimes legal, as were the horrible spectacles in the Coliseum. Slaves came from conquered peoples.  “Morality” was more a “practical” thing in those days; there was no pretense of the right to life or of universal human rights. See US News and World Report, Jan 8, 2001, “The World in 1 AD.”   

68 Leon Eisenberg, "Is the Family Obsolete," The Key Reporter, Phi Beta Kappa, Spring, 1995. Scandinavian countries are well known for (significant) paid parental leave in private and public workplaces. They make no bones about requiring the childless to support families with children, although they try make up with laws protecting gays from other discrimination. In 1996, a poll of Swedish voters showed they opposed tax cuts because they don't want to give up "family welfare." Will this lead to a "brain drain" of younger single skilled workers?

68a Ch. 5 P 247, fn 68: A few non-profits with social agendas practice what they preach and offer paid maternity (even paternity) leave. But how will religious organizations who believe women belong in the home treat female employees?

68b Ch. 5 P 247 pr. 4. Maybe the worst insult to heterosexuals is to have to deliberately recognize heterosexuality's own existence! After all, Master and Johnson authored Heterosexuality (Harper, 1995).

68c.  In 2002, there was study showing that children of women who work full time before their children are at least nine months old do not do as well on intellectual performance.  A similar result seems to hold with children who had little breast feeding. This, along with studies regarding reduced fertility among women who postpone having children for career, seems to point to a “collective” problem when women who want to have children early must “compete” with those who don’t or when men reduce the value of fatherhood in their own purposes for sexuality. 

68d.  Although most mainstream employers today do not live to consider marital status or family obligation as relevant to the ability or will to do most jobs (and may believe they are legally forbidden from inquiring in many states), marital status and especially having dependents definitely affects eligibility for financial aid for trade schools (as usually administered by state and sometimes federal programs).  This can differentially affect laid-off employees seeking to acquire new technical schools and certifications for career transitions. 9source: KRS Computer & Business Scholo, Bloomington, Mn.)

68e  Allan Carlson talks about the “family wage” as a motive behind FDR’s New Deal, on p. 148 of his 1988 book Family Questions: Reflections on the American Social Crisis,” (Transactions Press, 1988), in a chapter called “The Moral Politics of the Minimum Wage.” Carlson believes that modernism and equal career opportunities for women are undermining family socialization.See also note 53b.

 69 Jonathan Rauch, "A Pro-Gay, Pro-Family Policy,". The Wall Street Journal, Nov. 29, 1994

70 Males, The Scapegoat Generation (1996).

71 George Gilder, Sexual Suicide (New York: Quadrangle, 1973);

George Gilder, Men and Marriage (Louisiana: Pelican, 1986).

72 Arkes, The Weekly Standard, Nov. 30, 1995.

73 On Dec. 3, 1996, a Hawaii state judge ruled that the state had no rational basis to ban same sex marriage which, on the face, discriminates on the basis of gender; the judge also ruled that the state had not shown gay couples had not performed as successfully as parents in traditional families. The judge put his own ruling on hold for appeal to the Hawaii Supreme Court. See Barbara Vobejda and John Yang, "Children: A Pivotal Issue in Gay Marriage Ruling," The Washington Post, Dec. 5, 1996, p A3. Our discussion of gay parents follows shortly. In April, 1997, Hawaii seemed to headed toward a state constitutional amendment denying official recognition to same-sex marriage, but requiring domestic partnership benefits in some circumstances

73a Ch. 5 Pg 249, pr. 2: A CPA tells me that, until the Tax Reform Act of 1986 (well known as a policy blunder over the passive rental income issue), there was an intentional "single penalty" in the tax code, as well as the "marriage penality."

Remember, legally married partners cannot be required to testify against one another (a real "privilege"). In fact, if legally married spouses file separate returns, the IRS can no longer hold one spouse responsible for the other's debts (even though the "marriage penalty" may be owed). On the other hand, with domestic partners, not only are "palimony" suits rare, alienation of affection suits (like a recent case in North Carolina) cannot happen. Domestic partners may not enjoy various other benefits, such as "inheritance" of rent-controlled apartments.

When companies offer equivalent "domestic partnership" healthcare benefits to not-legally married partners of employees, the (non-contributory) premiums are taxable by the IRS. A very few companies have paid to offset this tax. Another little example of where tax policy tries to do social engineering.

Another example of workplace disparity: heterosexuals often meet future spouses in the workplace; for gays (especially men), courting in the workplace is dangerous, to say the least.

In Bob Powers and Alan Ellis,  A Manager's Guide to Sexual Orientation in the Workplace (Routledge, 1995), practical arguments for same-sex domestic partnership benefits are presented, from p. 125. For example, the City of Seattle found no actuarial risk when the policy was instituted in 1990 (and cancelled its surcharge), and the cost of caring for a partner with HIV is usually less than caring for children with severe disabilities; and gays and lesbians do have children to raise.

Gerald Celente: Trends 2000: How to Prepare for and Profit from Change in the 21st Century (Warner, 1998) talks about the "millennium family" (only 26% of families in 1999 are "traditional" one-earner husband-wife with children) and the notion of "progressive libertarianism."

73b marben- contains a summary of the benefits and drawbacks of legal marriage. In early 2000, the Vermont house passed a “civil union” bill offering most of the marital “privileges” to same-sex unions, but not the use of the word “marriage.”  The Vermont state senate approved the bill in April, 2000; many other states have passed laws exempting themselves from recognizing “civil unions” in other states.  Certain other domestic arrangements may have some of the privileges.

Whatever the philosophical public policy debate, there is a detailed discussion of actual financial planning issues for gay and lesbian couples (including the effects of Vermont’s law and of domestic partnership employment benefit provisions in many areas) in the essay “Straight Money Facts for Gays and Lesbians” at

In October 2001 California passed and Gov Gray Davis signed a domestic partnership law for California. The law will give registered couples several basic legal and financial tools. Partners will soon have the legal right to make life
and death decisions on each other's behalf. As enacted under AB 25, domestic partners will have these rights:

- Relocate with a domestic partner without losing unemployment benefits.
- Use sick leave to care for an ill partner or the child of a domestic partner.
- Be exempt from state income tax the health benefits provided to domestic partners.
- File disability benefits on behalf of an incapacitated partner.
- Make medical decisions in the hospital or act as a conservator.
- Sue for wrongful death as well as seek damages for negligent infliction of emotional distress.
- Administer a partner's estate.
- Bequeath property to a domestic partner using the statutory will.
- Adopt a partner's child using the stepparent adoption process.
- Continue health benefits for surviving partners of governmentemployees and retirees.

Additionally, AB 25 requires health plans to offer domestic partner coverage to businesses and associations similar to coverage offered to dependents of employees and subscribers. This requirement will assist small and medium-sized employers that decide to offer domestic partner benefits to their employees. Further, opposite sex couples may register as domestic partners.

73c. See Owen Ullmann, "Tax Break for Couples Could Create Imbalance Elsewhere," USA Today, August 10, 1999, for a mathematical analysis of the marriage penalty and marriage benefits in the tax code. Should government reward legally committed sexual complementarity by making everyone else (especially gays) subsidize it?  

73d  Of course, others besides legal spouses and children can receive inheritances, but legal spouses generally may not be left out of wills.  In June 2000, the House of Representatives voted to repeal the inheritance tax (over the sliding $600,000+ limits) completely over some timetable, appealing to the argument to save family farms and family businesses. Above these limits, the estate tax rate raises to 55% now. It could be argued (in conjunction with note 196) that the bill encourages family cohesiveness and weighs against individuals (often gays) who set up lives around interests distant from family matters. The left would argue that completely abolishing the estate tax preserves inherited “privilege.” 

Objectivists have supported the idea of inheritance, but generally maintain that an individual will fare well or poorly in life based on how well he or she uses the inheritance. Another hidden idea is the “dead hand” – a post-probate condition on the receipt of funds by heirs. The ability of heirs to keep the money (or receive it from trust) could depend on some specific behavioral requirements. This is more common in Britain than in the US. For example, an heir could have to get married (legally, heterosexually) or stay married. This is surprisingly little known by the public as a whole.

73e  The Canadian government is not appealing a ruling from the Ontario Supreme Court in June 2003 essentially allowing same-sex marriages. The effect may be that Canada joins Belgium and the Netherlands as countries that legally recognize same-sex marriage (Belgium recognizes it for immigrants only from countries that also recognize it, and the Netherlands has a long residency requirement, whereas Canada has neither). This could cause interesting situations as the United States normally recognizes Canadian marriages. See Allison Dunfield, “Ottawa won’t appeal same-sex marriage rulings,” Toronto Globe and Mail, June 17 2003.  

73f  Jeff Jacoby, in an editorial “Same-sex marriage might ruin traditional family life,” produces a rather collectivist argument against gay marriage in his July 2003 Boston Globe op-ed. To answer “rationalist” arguments for gay marriage, Jacoby quotes a Globe report that of the 5700 gay and lesbian unions in the past  3 years, 2000 came from previous heterosexual marriages. Of course, such an argument diminishes the moral importance of the fact that 2000 individuals made personal choices (now more protected by the Supreme Court as a fundamental right under due process in Lawrence v. Texas sodomy law opinion) for their own personal happiness but for which they can also be held personally accountable. Again, I would like to direct the argument more to the idea that marriage has a lot to do with providing for people who aren’t able to make all of their own choices, and cast the argument in terms of the notion that responsibility for self incorporates responsibility for others. Indeed the gay marriage debate will test the limits of self-ownership and individualism as a moral philosophy, and might well also bring back another debate about filial responsibility, as the elderly population grows and as the gap between rich and poor among families with children gets larger.

However, many adult children would maintain that they are entitled to recover lost wages or expenses from caring for parents. In some cases, this has led to intra-family fraud in guardianship or conservatorship of the elderly. Sometimes elderly persons are declared incompetent with little due process and defrauded by companies, also. See Barry Yoeman, “Stolen Lives: Thousands of older Americans are being robbed of their freedom, dignity and life savings by a legal system created for their protection. How can this happen?”  in The AARP Magazine, Jan/Feb 2004, p. 42.

73g David Wilkinson and Chris Stevenson proposed a Department of the American Family in an op-ed “In support of marriage” in The Washington Times, Dec. 16, 2005. The tone of the article expressed concern that many young and perhaps middle aged adults today have lost interest in even having children and raising them in such an individually competitive society. The article also refers to the (Healthy Marriage Initiative) and the Federal Marriage Amendment (attempted in the summer of 2004 to prevent gay marriage and failed) but seems to confuse the gay marriage issue with the “singles” issue so important in my own book.

Richard Sincere rebuked the idea of a “Department of the American Family” with his letter (“Regulation, bureaucracy and the family”) of Dec. 20, 2005 at

74 Mixner, op. cit., p. 141.

74a.  On the $600,000 limit (increasing every year since 1996), single people can of course leave their money as they choose (subject to the same limits), but sometimes their wills are challenged, and it is often difficult to leave a spouse out of a will if one wants so.

75 In the Bottoms case in Virginia, the grandmother sued to take custody away from her own lesbian daughter! Sharon Bottoms was even forbidden to have her partner present during visitations! The presumption that Bottoms violated Virginia's Crimes Against Nature law was used as a justification for the custody verdict from the state supreme court. In April, 1997, Bottoms sued to be allowed to see her daughter with her partner present. In another case in Florida, custody was awarded to a convicted murderer ex-husband! In Oklahoma, a lesbian actually lost custody to a deadbeat dad owing almost $30000. In North Carolina, however, a gay man regained custody in state appellate court after his male lover moved in. After Romer, courts may feel less inclined to cite sodomy laws in custody battles. See Tzivia Gover, "Fighting for Our Children," The Advocate, Nov. 26 1996, p. 22. (In 1999, a Texas judge ruled that a lesbian mother gaining custody in a divorce could not take her child to Metropolitan Community Church! Does the government decide what constitutes "religion" under the First Amendment?)  See also note 77.

75a Ch. 5 P 250, fn 75: There was a particularly egregious case in Maryland where a judge ordered a gay divorced man to allow his son near any other person with "homosexual tendencies."

75b  (Dec. 4, 2003, ABC News “Good Morning America”) The seven-year-old son of gay mother Sharon Huff was reprimanded by a teacher (in Louisiana) with letter to her parent for using “bad words” in explaining to a classmate that her mother was gay. The form read, "Marcus decided to explain to another child in his group that his mom is gay. He told the other child that gay is when a girl likes a girl. This kind of discussion is not acceptable in my room. I feel that parents should explain things of this nature to their own children in their own way." In theory, I could be concerned that this is a reflection about community standards (in a conservative community) in the relevance of homosexuality in “harmful to minors” determinations in COPA. See

76 Florida, in fact, uses language forbidding adoption by anyone "who is homosexual." In April, 1997, the ACLU filed suit to have this law struck down. Will Florida resort to the military's "presumptive" definition of homosexuality (as enacted by Congress)? The law does not by itself determine custody outcome, but it must have affected the case mentioned above.

See also 76j.

The Supreme Court, in January 2005, refused to hear a case (filed by gay foster parents) challenging a decision from the 11th Circuit (complicated by Judge Pryor) allowing the Florida gay adoption ban (unique in the nation as of 2005) to stand. The 11th Circuit apparently had maintained that the ban did not hinder the adoption of foster children in a significant way. Some activists fear that the Court’s inertia here will be interpreted by other states as a green light to pass gay adoption bans (starting with Arkansas, given that an administrative ban on gay foster parents there was overturned).

76a Ch. 5 P 250, fn 76 : New Hampshire, in fact, has had a "must ask, must tell" policy in which the prospective parents must be asked if any homosexual lives in the household. In 1999, the NH legislature will consider repeal. But Mississippi now considers a law (in 2000) banning gay couples from adopting (although perhaps not gay singles). Missisippi would also refuse to recognize adoptions by same-sex couple adoptions from other states (possibly a Full Faith and Credit violation).  Utah has administratively prohibited adoptions by “unmarried couples,” and Arkansas has also administratively prohibited lesbians and gay men, as well as heterosexuals who live with them, from adopting. (Source: ACLU Guardians of Liberty, May 31, 2000.) 

Note - April 1999 N.H. legislature repealed this law (both legislatures by wide margins) and the governor signed.

In April 2000, the Mississippi legislature approved a bill to prohibit homosexuals or same-sex couples from adopting children. 

The following states have state court rulings supporting second-parent adoptions by same-sex couples: Vermont, Massachusetts, New York, Wash. D.C., Illinois, New Jersey

These states that have higher state court rulings denying second parent adoptions,

Wisconsin, Colorado, Connecticut, (and one presumes, Florida and New Hampshire).

In these states, judges generally grant them but there is no higher state court ruling on the books:

Alabama, Alaska, California, Georgia, Indiana, Iowa, Maryland, Michigan, Minnesota, Nevada, New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, Texas and Washington.

In Minnesota, the state emphatically suggests that suitable single people may adopt on their own. Notorious “Dr. Laura” has insisted that a gay-couple adoptions denies a child “a mommy and a daddy,” but the practical setting may be that a child gets adopted by a same-sex couple or a single person or does not get adopted at all.

The Newark Star Ledger, on May 18, 2000, reported (in a story by Robert Cohen) that New Jersey Rep. Chris Smith introduced an amendment to a House bill ratifying the Hague Convention on Intercountry Adoption, to bar homosexuals from traveling from the United States to adopt children overseas.  Ironically, Smith is a vocal opponent of abortion.  The proposal was criticized as contrary to “states’ rights.”  No kidding.

On June 17, 2001 PBS ran a program “Kids of Gay and Lesbian Parents.” In one case in Arkansas, teenage sons of lesbian parents were being bullied and harassed and the school principal had the temerity to say to the parents, “why don’t you change your lifestyle, when you see that it is affecting your children?” Don’t people get what’s wrong with that?  It would seem that the school system would be liable for negligence if it did not discipline the students involved.

Andrew Berg provides a discussion, “Will My Kids Be Gay,” in the September 2003 And Baby. Berg writes, “More than 30 studies comparing the children of gays and lesbians to the children of heterosexuals have shown no significant differences when it comes to sexual orientation and gender identity.”

In early 2004 Oklahoma passed a law barring recognition of adoptions by same-sex couples in other states, and took away parental rights from non biological parents (or parents by legal marriage) when passing through the state. This seems to be a misuse of state-by-state experimentation (that is, using public policy exceptions to Full Faith and Credit), a solution that has generally been credible with the gay marriage debate itself. See HRC’s commentary at

76a1. From the New Jersey Law Journal:

“Same-Sex Marriage Laws Are Entitled to Full Faith and Creditby Martin L. Haines, Sept. 24, 2001

   “ It is very unlikely that the U.S. Supreme Court, once it has the issue to decide, will deny application of the Full Faith and Credit Clause to same-sex marriages. It reads the clause broadly, saying its purpose is "to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation. (Williams v. North Carolina, 317 U.S. 287 (1942).

   “ Even if the Court refuses to apply the Full Faith and Credit Clause to same-sex marriages, it cannot avoid the application of the Constitution's equal protection and due process clauses to them. ("[No State shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") “

76b  The Dutch parliament has reportedly approved both same-sex marriage and in some cases adoption, to take effect in April 2001.  The web reference is

 Ch 5 P 251. In 1997, Minneapolis mayoral candidate Barbara Carlson (the "conservative") proposed licensing for parents on public assistance. Possibly, this could have led to subsequent legislation denying parent "licenses" to gays and lesbians. Later, Carlson changed her suggestion to mandatory parenting classes for those on assistance.  

76c  On March 9, 2001 ABC 20-20 reported positively on the children of gay parents, including a teenage man raised by a lesbian couple and grade-school girls raised by a gay male couple. The gay male couple had fathered two children by artificial insemination with a surrogate mother around 1990, mixing sperms intentionally to symbolize the relationship.  All the offspring interviewed appeared well-adjusted and none had grown up to be “gay.”  Both sets of parents were in long-term relationships.  Several reported teasing and taunts when in grade or middle school.  (Of course we know that teasing has in other media-reported scenarios recently had serious consequences.)  Again, let us hope that no state tries to make artificial insemination illegal. 

However University of Southern California professors Judith Stacey and Timothy J. Biblarz released a study to the effect that “children of lesbian and gay parents are less likely to conform to traditional ideas of gender roles, gender-based career choices, and compulsory heterosexuality.” (Abilgail Garner, “Families Like Mine,” Lavender, May 18, 2001. Garner goes on to argue that such studies are defensive in nature, needing to demonstrate that children raised by gay parents won’t be gay themselves.

76d  More resources on same-sex marriage:


Freedom Network:

76e.  One contributor to queerlaw informs us about Robert Wintemute’s new book on same-sex partnerships. The book is  Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law, Robert Wintemute and Mads Andenaes, Editors. (Hart Publishing, Oxford, England and Portland, Oregon, 2001.)

At 790 pages, the book promises to be an encyclopedic look at same-sex marriage as its legal advocacy and adoption sweeps the globe.

Authors included are (in the U.S.), Chai Feldblum, William Eskridge, Jr., Arthur Leonard, Nancy Polikoff, Evan Wolfson, Mary Bonauto, and a multitude of others who come from Australia, the UK, Canada, New Zealand, Brazil, Japan, China, India, Israel, Denmark, Spain,  . . . a total of 47 contributors.

Major parts are I. Theoretical Perspectives; II. National Law of the
U.S., Canada, Africa, Australasia, Latin America, Asia, the Middle East and European States; III. European Community Law, and IV. International Law.

76f    In early 2002 the Virginia legislature considered but rejected a bill that would have banned the Virginia Housing Development Authority from making or backing joint loans for couples who were not legally married. See also 91a.

76g.   On March 22, 2002, the Minnesota house turned down a provision offering health insurance to same-sex domestic partners of state employees, overriding the wishes of Mn. Governor Jesse Ventura.

76h But Stanley Kurtz, in “Gay Priests and Gay Marriage,” National Review, June 3, 2002, tries to draw a bizarre analogy: gay marriage would “contaminate” marriage as a complementary and committed institution the way homosexuals infect the priesthood! 

Laurie Goodstein, “Vatican to Check U.S. Seminaries on Gay Presence,” The New York Times, Sept. 15, 2005, suggests a witch-hunt within 292 Roman Catholic seminaries in the United States for homosexual students and for teachers who vary from the official teachings of the church. The Vatican is supposedly going to rule on the issue of homosexuals in the priesthood (given the scandals involving minors), including whether persons with ancient homosexual activity or even just admitted latent inclinations should be banned. It seems like common sense that the scandals would not have occurred if the Church allowed (heterosexually) married men to become priests or priests to marry, in which case persons with more common values regarding parenting, family and lineage would be attracted to the priesthood, as in Protestant denominations.

76i   Here is a great tabular analysis, “Gay Marriage Rights” by Canadian Roedy Green (Canadian Mind Products) of gay marriage arguments, including (in Canadian law) the rights that same-sex couples would give up if gay marriage were legal. There is also a country-by-country international analysis, as of June 2002. The link is

76j  For more on Florida’s “no homosexuals” adoption law, which was upheld in 2003 by a federal appeals court: the case of Wayne LaRue Smith and Dan Skahen, who have cared for 23 foster children but were denied adoption, will be heard by the Supreme Court in early 2005. One major argument is that Florida law discriminates against their children rather than just against the couple. On the other hand, the state maintains, perhaps facetiously, that it is trying to place the children into adoption with legally married heterosexual couples. Many are very hard to place. See story (“Supreme Court Gets Adoption Case: Key West gay couple granted custody, but they can’t adopt” by Phil LaPadula in The Washington Blade, Oct. 9, 2004, at

Now there is a new storm (January 2005) in Virginia:

What I think could happen is that such a law would revert back to the federal definition of "homosexual" in the 1993 law for the military.  This is important!


Proposal would ban gays from adopting children

By Christina Bellantoni




 RICHMOND - Lawmakers will consider a bill that would forbid homosexuals from adopting children.
     Delegate Richard H. Black has proposed a bill that would add new criteria for adoption reports filed with the circuit court. The Loudoun County Republican's bill amends the state's adoption law by adding a phrase that states: "No person under this statute may adopt if that person is a homosexual."

Again, this is a “must ask, must tell” law (or a “do ask do tell” law).

Now, imagine, as a thought experiment at least, a second law that requires that teachers (over a certain age) of students below a certain age or of special needs students or assistants who must give personal care have been parents themselves. Imagine also a law that says that an attendant who gives personal care to mentally impaired persons not be homosexual in the legal 1993 definition, or have stated in a public forum that he or she is. This can be a very slippery slope indeed!

"While considering this bill, the House Health, Welfare and Institutions Committee voted to significantly weaken the measure’s language, making sexual orientation and “homosexual activity” only one factor in the overall evaluation of a candidate."  This language is as follows: "this bill will now directs that the investigative report presented by the adoption agency to a judge prior to entry of an order of adoption include information on whether the petitioner is known to engage in current voluntary homosexual activity or is unmarried and cohabiting with another adult to whom he is not related by blood or marriage. This information would be in addition to information on whether the petitioner is financially able, morally suitable, in satisfactory physical and mental health and a proper person to care for and to train the child, among other criteria." (Source This bill was defeated in the State Senate judicial committee in late February 2005.

For a more complete state-by-state list visit

76k Dec. 29, 2004.  In Arkansas, Pulaski County circuit Judge Timothy Fox ruled that Arkansas Child Welfare Agency Review Board cannot forbid the placing of a child in a foster home merely because the home has a gay household member, and that furthermore the Board was not entitled to pass its own rules based on its view of “public morality.” One wonders what kind of pseudo due process could have established that a particular home has a gay household member. Go to

76l  On Aug 4 2005 Oprah Winfrey interviewed a married couple where the husband had undergone a sex change operation to female after ten years of marriage. Five years later, they were still married (with two biological children). The sex change operation did not change their legal marital status since the marriage had started as an opposite sex marriage. The marriage was abstinent or platonic, the “wife” did not consider herself to be a lesbian, but the parther who had changed was becoming more interested in men. Transgendered people typically have led straight lives.

77 (see also 76c) Barbara Kantrowitz, "Gay Families Come Out," Newsweek, Nov. 4, 1996, pp 51-56

See also Frederick Bazett, "Children of Gay Fathers" and Saralie Pennington, "Children of Lesbian Mothers," in anthology Gay and Lesbian Parents, edited by Bennett (Westport: Praeger, 1987),

Laura Benkov, Reinventing the Family: Lesbian and Gay Parents (New York: Crown, 1994), and Charlotte Patterson, "Children of Lesbian and Gay Parents," Child Development 63, #5, Oct. 1992. Also, Patterson, "Children of Lesbian and Gay Parents: Summary of Research Findings," from Sullivan, Same-Sex Marriage, op. cit., p. 140; Jerry Bigner and Frederick Bozett, "Parenting by Gay Fathers," excerpts from the Virginia Appeals Court 1994 ruling in Bottoms v. Bottoms, and important papers by Flaks, Belcastro, Wolfe, and Antiga on gay parenting.

Lisa Keen, "Children of Lesbian Mothers Don't 'Differ' Significantly," The Washington Blade, April 11, 1997, p. 14.

77a. Here are some more references on gay and lesbian parenting, adoption, and custody. Legally, this is a very fragmented area of law, differing enormously among the states and changing rapidly, and it is difficult to keep up with it in detail. :


Gay Parent Magazine Online:

Lesbian mothers:

Human Rights Campaign:

On Februrary 15, 2002 CNN “The Point” ran a discussion of the absolute gay adoption ban in Florida, which may now come under leagal tack from talk show host Rosie O’Donnell.  CNN presented a case a younger gay male couple in Florida, Wayne Smith and Dan Skehan, who had cared temporarily for up to ten foster children during the past year and wanted to adopt. They story made a clear case for the “best available parents” argument.

On March 24, 2002 Diane Sawyer on ABC “Primetime Live” presented a two-hour special on the adoption problem. Now both CNN and ABC report that Florida, Mississippi and Utah outlaw gay adoptions. The broadcast presented the story of a gay couple, Steve Lofton and Roger Croteau, together for 18 years, who had taken in five HIV+ children, some for foster care. Several of them had thrived into adolescence. When one of couple tried to adopt the youngest child (after Florida maintained that the child would have to be legally adopted), he was confronted by a question from Florida “asking” if he was homosexual. When he omitted the answer, he was rejected.and the state now threatens to remove the child when a heterosexual family can be found.  Rosie O’Donnell, who had come out (she has a female partner of four years) and discussed her own story as a single lesbian parent (she also is trying to adopt a foster child and has a home in Florida, so she faced the “gay” question), took an interest in their case and assisted them with a lawsuit and appeal to the 2nd Circuit.  The web site for the Lofton-Croteau case is  Primetime suggested that the issue had become particularly difficult in Florida because of the Anita Bryant backlash back in 1977 (Primetime showed Bryant getting to be a pie face).  Sawyer’s report emphasized that there are not enough prospective “heterosexual” adoptive parents for minority foster children. Many states (Minnesota included) allow and even encourage single adoptive parents because the shortage is so sever. 

Ann Oldernburg provided a story “For Rosie, coming out is merely about what’s right,” in USA Today, March 12, 2002. There is also the question of how her coming out will affect her audience as a talk show host—we expect positively in this case. Yet show business has had the attitude in the past that their stars should not make their own personal lives into public controversies (the “don’t ask don’t tell” mentality) and sometimes write this into contracts.  Again, see See also note 149a.

See also note 75 for the Bottoms case in Virginia.

77b  Newsweek, Feb. 11, 2002 contains the article, “Don’t ‘Protect’ Me; Give Me Your respect: Growing up with a gay father wasn’t easy—but only because our society doesn’t accept families like mine,” by Abigail Garner, p. 13.

77c   On February 3, 2002, the American Academy of Pediatrics announced: Children who are born to or adopted by one member of a same-sex couple deserve the security of two legally recognized parents,” in Pediatrics. This is interpreted as “announcing its support … for the right of gay men and lesbians to adopt their partners’ children.” Erica Goode, “Group Backs Gays Who Seek to Adopt a Partner’s Child,” The New York Times, Feb. 3, 2002. These are known as “second-parent adoptions” According to the Goode article, “three states effectively ban such adoptions, seven states and Washington, D.C., permit them by law and otherwise the legal status of such adoptions varies widely.”

And there is a case in Florida (2002) involving the ability of a transgendered male (after change from female) Michael Kantaras, to maintain custody of a child conceived with artificial insemination. Here is part of the press release:

Transgender Law & Policy Institute

Equality Florida Legal Advocacy Project Represents Transgender
Father in Custody
Battle Televised on Court TV

 For immediate release

 SAN FRANCISCO -- February 15, 2002

Anyone tuning into Michael Kantaras’ custody battle in Clearwater,
looking for “talk show” style sensationalism got an advanced

education on transgender issues instead.  Due to the unprecedented
Court TV coverage of Mr. Kantaras’ fight for his children, more
people were exposed to accurate information about transsexualism and

sex-reassignment than in any case that has ever been litigated on
behalf of a transsexual person anywhere in the country.

“We have heard from transgender people from around the country who
see this case not only a validation of their ability to marry and be

good parents, but also as an unprecedented validation of our lives
as transgender men and women,” said Kantaras co-counsel Shannon
Minter.  “In addition to Michael himself,” adds Minter, “the primary
credit for the educational impact of this case must go to
attorney Karen Doering, the founder and director of the Equality
Florida Legal Advocacy Project, a non-profit legal organization
based in
Tampa, Florida.  Karen’s dedication to this case is what
has transformed this private battle into an amazing opportunity to
educate the country about transgender issues.”

 77d  In North Dakota, Ohio, Michigan, and Arkansas custody has been denied to gay parents who were cohabiting with same-sex partners (in a spirit similar to Bottoms in Virginia). The Surpreme Courts of N.D., Oh and MI have upheld these practives. In Idaho, visitation rights were denied to Shawn McGriff for cohabiting with his lover (Idaho Statesman, 7/11/2002) by a Bonneville County magistrate. A few states, like Arkansas, prohibit visitation in the home or dwelling space where a same-sex partner or legally unmarried partner cohabits.

78 Dr. Kenneth Morgen, Getting Simon (New York: Bramble, 1995). Morgen doesn't try to explain his desire to be a parent. The book provides detailed guidelines and forms.

See also American Psychological Association's Lesbian and Gay Parents, a Guide for Psychologists

79 Conversation with Tim Fisher, Gay and Lesbian Parents Coalition International, 1996 (and newsletter).

80 ABC "20-20" Report, Sept. 28, 1996.

81 Viatical settlement companies buy life insurance policies from terminally ill persons (not just AIDS patients( and provide cash for medical care and living expenses. This is "fending for yourself," when there is no other institutional source of health insurance, but it deprives someone of passing an estate to a loved one. Arthur Allen, "The Invisible Hand," The Washington Post Magazine, Nov. 17, 1996. There seems little doubt that in any reasonable system, the availability of some level of guaranteed-issue health insurance covering disabilities and catastrophic illnesses is essential public policy.

81a On August 4, 1999 ABC "20-20" ran a story about the sale of viatical contracts to investors by insurance "brokers." Individual investors buy the right to the partial death benefits of terminally ill persons once they die. Some investors have become "upset" that AIDS patient subjects are living unexpectedly long due to the recent use of protease inhibitors. Since this practice is targeted to the expected deaths of known, specific and named individuals (known even to the investors) this exercise of raw capitalism does incite a certain moral squeamishness; it seems to some to devalue human life.   But, to be fair, there are those who describe ethical and proper ways to pursue these investments, that may actually prolong lives. The source is

81b  There is more discussion of viatical contracts by Jane Bryant Quinn, “Should You Invest in Death?”  Newsweek, May 14, 2001, with discussion of a self-published book (imprint is Bialkin Books) by Gloria Wolk, Viatical Settlements: A User’s Guide, (and Cash for the Final Days) with the ambiguous convolutions of libel suits filed against the authors by two companies.  

82 Although some libertarians, while advocating total privatization of schools, also opposed vouchers; they argue vouchers lead to dependency. See also Chapter 6, note 35a. On November 14, 1999, CBS "60 Minutes" presented a story about the Edison Project, an initiative with which private corporations run public schools (including curricula and teachers) as contractors for school boards.

On August 6, 2000 CBS “60 Minutes” presented a compelling story on magnet “KIPP” public (middle) schools in Houston and in the South Bronx, New York, the idea coming from two young teachers in their early twenties in 1993.  The schools feature long school days, intensive drill on the basics, strict contracts for students and teachers who must be “on call” at all times for students, and have achieved impressive results with students from poor neighborhoods. Several corporations may help fund in other cities. This is an example of a public program started largely by private initiative, and it works.  

82a Ch. 5 P 252 pr 5.: Actually, a balanced federal budget and a flat income tax (or better, no income tax) would reduce interest rates and would tend to encourage more consumer lending and borrowing. Lenders would need to make sure borrowers live up to their voluntarily assumed obligations.

82b Ch 5 P 255, proposed definition of marriage: On Aug. 15, 1997, Louisiana offered a voluntary "covenant marriage" (for opposite sex unions, of course) that virtually eliminates no-fault divorce. Should society or private interests offer (voluntarily) privileges to those who agree to and maintain covenant marriages? (See also note 94).

82c Ch 5 P 259, pr. 5. Although we hear a lot about today's low unemployment and tremendous demand for technically skilled people (especially for the Y2K problem), older managers (at least those who did not deliberately reinvent themselves in the early 1990's) are still hard up. See Tony Horwitz, "Some Who Lost Jobs in the Early 90's Recession Find a Hard Road Back; Younger Workers Do OK, But the Over-50 Set Sees Sharp Drop in Prospects; Upside: Joys of 'Mr. Mom,'" The Wall Street Journal, June 26, 1998. People are even rejected by computer!  

82d Before Father’s Day in June 2003, CNN reported that the national unemployment rate for fathers with dependent children under 18 was 4.5% as compare to 6.1% nationally. The report did not address marriage per se. It apparently did comprise fathers with custody or actually raising their children (not divorced or unmarried fathers without custody). The report also claimed that some employers do consider the presence of dependents in making close layoff decisions. I have reported anecdotes of that elsewhere, but in general many large employers tend to do layoffs as a numbers game with a very structured, impersonal approach to protect themselves from discrimination lawsuits. In general, the unemployment problems for single mothers seem to be very severe. Whatever this report implies about gays or childless men, it also seems that people who have children before preparing themselves for stable careers often have severe employment problems. So these numbers may be deceiving, and individual circumstances may be much more important.

82e An indication of the problems of single mothers with children was illustrated by the arrest of a Brooklyn woman for leaving her young children at home when they died in a house fire while she was at work at MacDonalds as an assistant manager. Apparently she might have been fired if she had not shown up for work, and her babysitter did not show up. See story “Daily Choice Turned Deadly: Children Left on the Own” by Nina Bernstein, The New York Times, Oct 19, 2003.

83 David Boaz and R. Morris Barrett, "What Would a School Voucher Buy?" CATO Briefing Papers, No. 25, Mar. 25, 1996. Also, "Vouchers and Educational Freedom: A Debate," Cato Policy Analysis, March 12, 1997 (Bast, Harmer, Dewey). New Hampshire, with no sales tax and income tax, has among the best secondary school achievement (including private schools) in the nation.

83a Also, check Joe Viteritti, School Choice: The Constitution and Civil Society (Washington, Brookings, October 1999). Viteritti argues that school vouchers represent an opportunity to improve education for poor people, and form a proper alliance between private and public enterprise. In earlier times, private education really was available only to "the rich."

83b  Privatizing education would de-politicize controversial content (once we get beyond the legal church-and-statel arguments about vouchers for the non-sectarian component of education in private parochial schools). The Virginia General Assembly, in 2002, at least defeated a bill that would have severely restricted the presentation of “gay-related” subject matter in social studies (or health) classes in public high schools.

84 Gene Cisewski, Dave Doss, and Bill Boushka, Editorial, The Quill, March 1996, p. 4.

85 Kominas, op. cit., p. 321.

86 The Libertarian Party 1996 platform position appears in Appendix 7.

87 Gene Cisewski, "License Expired," The Quill, March 1996, p. 4.

88 William Mohr, "The Stakes in the Gay-Marriage Wars," Robert Baird and Stuart Rosenbaum, editors, Same-Sex Marriage: the Moral and Legal Debate (Amherst: Prometheus, 1997).

88a  In May 2001 Tom Green, who reportedly has 5 wives, will go on trial in Salt Lake City, Utah in the state’s first polygamy trial since the 1950s.  There are 25 children. The state maintains that “common law” defines these relationships as “marriages” and that the marriages had started underage.  The defense contends that Green is penalized for “taking responsibility” for his partners and for “telling” publicly.

89 William Eskridge, The Case for Same-Sex Marriage (New York: The Free Press 1996).

90 The government of Honduras is encouraging gay prison inmates to get married, to stop AIDS. This travesty was reported in The Advocate, Dec. 10, 1996, p. 18.

91 William Eskridge, "Credit is Due," The New Republic, June 17, 1996, p. 11. The Act would define marriage for the purpose of Federal benefits, and allow the states to refuse to recognize same-sex marriages performed in other states.

Also, David Frum, "Gay Marriage and the Courts," The Weekly Standard, Sept. 30, 1996, p. 30.

Some commentators claim that DOMA assumes that the Full Faith and Credit clause would not apply to "marriage"; instead there is just an extension of the amorphous notion of "comity." The FFC clause is more concerned, say, with honoring court judgments than with the recognition of social "contracts" largely defined through tradition. Further, states would not be required to honor civil arrangements (from other states) if these arrangements violate their own "public policy."

In May 2002 Rep. Bob Barr from Florida (Rep), with the backing of the socially conservative “Alliance for Marriage,” introduced a “Federal Marriage Amendment” (FMA) in the House of Representatives, limiting the only acceptable definition of marriage to be between a male and female. It is unclear to me whether this would apply only at the federal level or whether it would wipe out all domestic partnership laws in benefits passed by states and local governments. See my “Amendment 29” in Chapter 6 of DADT. But the text of the amendment reads

"Marriage in the United  States shall consist only of the union of a man and a woman."

It adds, "Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital
status or the legal incidents thereof be conferred upon unmarried couples or groups."

D.C. Congressional Delegate Walter Fauntroy supported the idea, saying "As an African American, I am particularly sensitive to and
knowledgeable of the value of the institution of marriage and the family," Fauntroy said. "For we, as African Americans, were subjected
to the most cruel form of slavery in the history of the world, a slavery based on the destruction of the family as a vehicle of
culture, socialization and procreation."

The organization is :
Alliance for Marriage
P.O. Box 26188
Alexandria, Va. 22313


See the Lou Chibbaro article in The Washington Blade, May 17, 2002.

91a In Virginia it is illegal for private companies to offer domestic parent benefits to non-legally married partners when they otherwise would choose to do so. A bill was introduced in 2003 to repeal this law but tabled in committee despite the lack of objection. The Family Foundation of Virginia wrote a press release that seemed to convey the idea that companies would be required to offer these benefits (they would not), and then this:

“Victory Alert: Last gasp effort by homosexual movement dies

A bill that would have expanded health insurance coverage beyond a spouse or
child to include "any household member" chosen by the beneficiary was killed
yesterday in a House committee by a vote of 13-6.  Delegate Kathy Byron
Lynchburg) led the charge to protect the family by working to kill
the bill that was championed by homosexual rights groups, including
"Equality Virginia" and the Log Cabin Republicans.  In opposing the bill
Byron stated, "One of the fundamental values that I hold dear in my life is
that family means mother, father and children."

What they are saying, however, seems to be that a company that offers health insurance benefits to non-married domestic partners will raise premiums and copayments for “normal married people” in a zero-sum-game world. That sounds like a dubious speculation.

91b  (From an AP story in May 2004)  Virginia has passed a new “defense of marriage” law that takes effect on June 30, 2004.  The new law is an amendment to the state's 1997 Affirmation of Marriage Act, which prohibits gay marriages in Virginia.  The amendment extends that prohibition to civil unions, partnership contracts and other "arrangements between persons of the same sex purporting to bestow the privileges or obligations of marriage."

        Virginia's attorney general and other supporters say the law provides a needed safeguard for the institution of marriage and does not deprive anyone of individual rights.

        But some lawyers say the law is so vague and ill-defined that it could interfere with legal contracts such as powers of attorney, wills, medical directives, child custody and property arrangements and joint bank accounts, perhaps even joint mortgages and leases..

The bill's sponsor, Del. Robert Marshall, a Republican from Prince William County, said the law is aimed at preventing same-sex couples from enjoying the benefits of marriage through other means.  New Jersey has a partnership law taking effect July 1.

        "Civil union is a proxy for marriage and domestic partnership is a proxy for civil unions," Marshall said.

        Virginia Attorney General Jerry Kilgore, the likely Republican nominee for governor next year, echoed this in an advisory opinion, saying he believed the law was constitutionally defendable.

Virginia is the only state where companies not large enough to underwrite their own insurance policies are forbidden to offer domestic partner benefits.  The state prohibits joint adoptions by same-sex couples and refuses to list the names of same-sex couples from other states on the birth certificates of children adopted here.


92 David Mixner, Stranger Among Friends, (New York: Bantam, 1996).

93 Liz Spayd and Brigid Quinn, "The Gay Marriage Trap: We Fell Into a Right-Wing Ambush," The Washington Post, Outlook, page C1, June 16, 1996.

94 Gallagher suggests that the law should at least allow lifetime binding agreements. Maggie Gallagher, The Abolition of Marriage: How We Destroy Lasting Love (Washington: Regnery, 1996), p. 250. But Andrew Sullivan points out that marriage is a constitutional right recognized by the Supreme Court even before women's suffrage. Laws restricting marriage for convicts and deadbeat dads have been held unconstitutional. Can it be unconstitutional to withhold recognition of privileged status for a personal relationship that persons nor in such a relationship must pay for? How can legal recognition of a religious ceremony be a fundamental right (or entitlement)?

But the conservative case against honoring even a golden "wedding" anniversary for a same-sex couple starts with the rune, "women tame men" (George Gilder and George Will).

95 The Virginia statute outlawing unmarried cohabitation was declared unconstitutional in federal district court in 1985.

96 Gallagher, op. cit., p. 136.

97 Arlene Zarembka, "Registering as Partners Could Turn Hazardous," The Washington Blade, May 2, 1997. Zarembka was Holobaugh's attorney (Chapter 4).

98 Jonathan Rauch, "Who Needs Marriage," from Beyond Queer, Challenging Gay Left Orthodoxy, a reader edited by Bruce Bawer, (New York: The Free Press, 1996)., p. 308.

99 M. Scott Peck, op. Cit (from Chap 3).

100 Marshall Kirk and Hunder Madsen, After the Ball: How America will conquer its fear and hatred of Gays in the 90's (New York: Plume, 1989), p. 360.

101 Michael Lerner, Editorial, "The Oppression of Singles," Tikkun, Nov.-Dec. 1995, p. 9; also, The Politics of Meaning (New York: Addison-Wesley, 1996).

102 The film Marvin's Room (1997), Miramax.

103 Gallagher, op. cit., p. 252.

104 Robert Bork, reviewing Maggie Gallagher's The Abolition of Marriage.

105 Laura Schlesinger warns women against "stupid conception" in Ten Stupid Things Women Do To Mess Up Their Lives (New York: Harper Perennial, 1995). Her favorite radio quote is "I am my kid's mom."

106 Jack Nichols, The Gay Agenda: Talking Back to the Fundamentalists (New York: Prometheus, 1996), p. 151. Nichols, one of the co-founders of the Mattachine Society, attended the Ninth Street Center talk groups in 1973, right after I had "discovered" it.

106a Ch 5 P 259 end of family values section 03, various other notes:

An upper-class example of gender roles is the expectation that fathers pay for their daughters' weddings.

One can understand arguments about the "social benefits of marriage" (and placing "family values" ahead of personal ambition) with the following points: First, many people (especially men) do much better in life when they know other specific loved ones depend on them. Second, practical necessity forces many people to defer following their own dreams in order to meet the needs of others. How often, in the past, did young adults forego college in order to work and bring income to family tables. A rising standard of living helps with this, and one can say government programs (like Medicare) have relieved individuals of many of these practical burdens. So "family values" provides a good test of libertarianism.

Here's a future example: Space travel. We'll go through a period where single adults (or possibly couples) can go on several-year voyages to other planets, but not "normal" adults with kids. (What about a single only child with an aging parent?) We really will notice the differences in our priorities, between vicarious self-perpetuation, and outer discovery of truth.

Male socialization (by women) into fatherhood still starts with sexual interest!

"Family values" would require that adults limit exchange of expression even among themselves to avoid inadvertent harm to children.

107 "Downward Mobility: Corporate Castoffs Are Struggling to Stay in the Middle-Class," Business Week, March 23, 1992, p. 56. See a similar cover story in The Wall Street Journal as late as May 6, 1997. In the 1980's, I witnessed several instances where, in a downsizing environment, computer programmers on progressive discipline were given make-work but complicated assignments (not mission critical) to prove that they still "belonged" in the business and had the ability to perform. One is reminded of a situation in the movie American Beauty where the anti-hero is told to write his own job description, and, when he rebels, fired; he winds up working for MacDonald's doing grunt work.

107a Ch. 5 P 260, pr. 1. See also Bob Weinstein's I'll Work for Free (New York: Henry Holt, 1994), pp. 143-163 on cover letters and working free (the programmer's letter is on p. 157). Are employees like service-goods or subscriptions, first issue free, send no money? I hope not. He gives some pretty humbling ideas for entrepreneurial grunt service work while doing "career work" for free. It's hard to advance one's own agenda if you always have to sell something like a Russian bureaucrat thrown out on the street. (There is more discussion of volunteering in Ollie Stevenson's The Colorblind Career (New York: Peterson's, 1997.   On Feb. 27, 2003, USA Today presented an article by Jon Swartz, “Many laid-off Silicon Valley techies work for free to brush up on skills.” Companies mentioned include eSelf and SeaBridge Software. Of course, unpaid and paid interns have been common at some companies for years.).

107b See also Tom Peters's The Brand You50 (Reinventing Work) (1999), which advocates the idea of every professional making himself into a "brand." The conceptual issue is this: how do you meet the short term needs of customers today and, at the same time, develop products, services or intellectual property that has no market today but that you believe will have great value say, in five years? There is a difference between "a job" and a career. But if you can't do the job your employer expects today and have enough left over to grow, you're already overvalued and in trouble with your priorities.

107c Sometimes “ex-managers” or highly-salaried professionals who seem too inflexible of “grizzled” (or perhaps too preoccupied) to keep up with technological virtuosity are put in the position of proving that they can perform specific maintenance or problem-solving tasks without assistance from others, in order to justify their incomes in a competitive context.  EDS, in fact, in its fabled new-hire training programs would insist that hires complete their projects independently (on the theory that someone on-call must be depended upon to solve a problem alone), although this gradually got relaxed in favor of teamwork.

107d  Sylvia Ann Hewlitt and Cornell West: The War Against Parents (Mariner, 2000), pp 71-83 provide some discussion of the way companies seemed to be taking the pressure put on them by corporate raiders and investment bankers out on their employees, especially in the late 1980’s and early 1990’s—and that this was especially hard on families with children. In many newer technical areas, the demand for skilled help has reversed much of this. 

107e  It was not unusual back in the early 1960s, say, for companies to tell entering college graduates (or ex-military) just where they should live and what kind of cars they should drive in public.  (With some companies like EDS, ex-military were particularly desired.)

107f   Check the New York Times article:  “When Employees Are Sick, Absenteeism Can Be a Virtue” September 26, 2004

(You may need to re-search or get a NY Times online subscription first)

108 But insurance "discrimination" may be allowed according to reasonable underwriting rules. For example, auto insurance companies often charge females less than males because men drive more aggressively, and, likewise, charge young single men more than young married men; here is a case of preserved "family values." Gay men probably drive less "aggressively" than straight single men.

108a Ch. 5 P 260, fn 108: In early 1998, one Texas auto insurance company actually offered 5 percent premium discounts to Boy and Girl Scouts (not sure about scoutmasters). And the BSA (but not the GSA) practices a military-style ban on gays. (See note 158). Here's another insurance oddity: back in the 1950's, there were a few cases where the policyholders of mutual casualty companies were sued individually for claims against the company, because policyholders "own" mutual companies, although normally state incorporation laws would prohibit these suits.

108b Ch. 5 P 260 fn 108. There is a lot of controversy over what "measures of compliance" employers must follow to show that they have complied with the 1964 Civil Rights Act (and more specific 1991 Civil Rights Act, which Clint Bolick calls a "quota act" in The Affirmative Action Fraud, Cato, 1996, p. 114) and various measures related to "affirmative action" (see fn 112 next page). These are supposed to "correct areas of past discrimination" and involved targeted measures to "recruit, train and promote members of protected classes." (Arthur Sherman, George Bohlander, Scott Snell, Managing Human Resources, South-Western College. 1996, p. 112). For example, companies are expected to advertise positions in "minority newspapers" (a designation which in itself [if abused] can lead to First Amendment problems). Another source refers to affirmative action plans as a "temporary measure" to "remedy the effects of past discrimination." (Muriel Crawford, Life and Health Insurance Law, LOMA/Irwin, 1994, p. 580. A quick search of the Internet (say, an advanced search of for "should contain" "racial discrimination promotions") shows a large amount of litigation (such as Texaco, Boeing, the IRS, various local governments) particularly in women and members of racial minorities not receiving promotions proportionally with white males. There are also multiple claims of reverse discrimination. What strikes me, of course, is that these cases continue while companies enlarge "spans of control" and reduce the number of promotions they offer (or make them less desirable by targeting middle managers in some layoffs). Could someone (as some conservatives claim) intentionally target a company for such litigation? The record shows that this really does not happen to any significant degree; in most of these cases, companies have been giving out promotions and have claimed that minority members were less qualified (on paper) or had poorer educational records or communications skills. In some minority families and in some blue-collar families, "getting promoted" and full recognition from "the establishment" is still very much cherished.

Bolick argues that race-based civil rights laws today actually discourage the hiring of minorities, out of fear of litigation (Nigel Ashford uses similar arguments in discouraging similar laws for gays), and encourages flight to the suburbs. (Bolick, op cit., p. 62). He also argues that most race disparities in corporate achievement are related to poor educational systems

The Minneapolis Star Tribune (Aug. 31, 2001), in a story by Robert Franklin, reports that a federal suit against St. Cloud State University based on allegations of a hostile (“racist”) learning environment, was thrown out by Judge Richard Kyle, Plaintiff Raymond Shorter had contended that the applied psychology curriculum was “Eurocentric”. The juge seemed to feel that the plaintiff had aggravated his own situation, but in fairness it must be reported that there have been other discrimination complaints at this institution. Sometimes infliction of emotional distress is actionable.

108c The other big measure of racial social justice generally is thought to be related to desegregation (beginning with Brown v. Board of Education, Topeka Ks., 1954). Starting in 1971, the Supreme Court allowed local court to order forced busing of school districts to obtain "racial balance" in the schools. Tamar Jacoby, in the op-ed "Beyond Busing," The Wall Street Journal, July 21, 1999, p. A22, argues that perhaps forced desegregation did little to improve African-Americans' academic performance, but that racial equality was gradually approached in the workplace not just because of civil rights laws but also because employers had to pay more attention to competiveness. In a USA Today (July 22, 1999) cover story "Is school desegregation fading?" Tamara Henry outlines the legal and public backlash against forced desgregation, as residential living patterns along economic lines undermine it. There has been particular anger when white children have been denied admission to magnet schools because of "racial balance." Forced desegregation is surely one of the most notorious examples of a democratic "group remedy" for an apparently compelling moral purpose at the expense of individual rights.

109 Normally, under ADA, employers may not require HIV tests to screen job applicants. Employers may require all (not just "apparently" gay) employees to take HIV tests once hired, but since 1990 I have heard of only one company with its own computer people that has done this. Some states allow mandatory HIV tests when HIV negativity is a valid employment requirement. One dentist's office in Dallas did this in the 1980's. But all health care professionals tell me personally that preemptive HIV screening of health care workers is not necessary, not even for surgeons (who are supposed to disclose positive HIV status if they perform invasive procedures).

Repa, op. cit., p. 8/49, reports that the percentage of major American companies reporting AIDS among workers increased from 23% in 1991 to 36% in 1993.

109a Ch. 5 P 261, fn 109: Although, as of the time of this book's publication, HIV infection without CDC-defined "full blown AIDS (HIV+ with at least one opportunistic infection or neoplasm, or a lowest recorded T-4 count of < 200) does not qualify for relief under the ADA.

The following provides discussion on the ADA from Department of Justice, with examples of workplace accomodations:
Click here:

The following provides the ADA text:
Click here: The Americans With Disabilities Act of 1990

109b There is concern over how a 1999 ruling by the Supreme Court to limit the effectiveness of ADA on conditions that have been "treated" may affect persons with HIV (particularly when asymptomatic). Most states have disability laws which are likely to provide some employment protection for those with HIV infection, including eligibility for group health insurance coverage (even group life) through the workplace. Generally, individual insurance (life or health) is not protected. Insurance companies use a Medical Information Bureau (MIB), which is a bit like a credit bureau, although HIV information as such is not carried by MIB. Mortgage insurance is likely to be covered in most states, although there have been few problems with applying for mortgages and loans.

This whole matter of the ADA and HIV may be invoked in debate as Congress, in 1999, considers legislation on "information brokers" and upon the sharing of information between different kinds of companies (more or less in the spirit of the Fair Credit Reporting Act, FCRA) as it considers allowing commercial banks to merge with other kinds of financial institutions and insurers, removing restrictions in place since the Depression. The Graham-Leach-Bliley Act in fact did pass in November 1999.

There have been media reports (as on ABC "Prime Time Live") of frivolous lawsuits based on the ADA, but the EEOC insists that it is not easy to prevail with a frivolous claim. See also note 113.

109c Ch P 261, pr 1. There is another subtle problem with the ADA. According to the law, an employer must make whatever accommodations for an handicapped or ill-health employee that it can without an "undue burden." But in situations involving salaried, exempt associates, the illness or disability of one associate can cause other associates to have to do that first associate's work on their own time, without extra pay, even when the FLSA is interpreted quite literally.

109d. Some larger government agencies have special programs to hire and train disabled workers.  But the downside of this is that workers sometimes feel that they must prove that they could make it on their own skills, without the special programs. For more on the ADA, see

109e  In January 2003 the media reported a lawsuit by soap opera actor Michael Nader when ABC did not renew his contract apparently after drug rehabilitation.  Drug addiction is legally recognized as a disability under the ADA, but drug use (as a conduct “offense”) is not.

109f  Some human resources texts report concern by employers about employee lifestyle behaviors that risk increasing group health insurance costs. These have tended to focus upon smoking, obesity, absence of physical examinations, extreme sports, not wearing seatbelts, and so on, rather than on sexuality and family. See Richard G. Renckly: Human Resources: Emphasizing Practical Problem Solving and Day-to-Day Operating Details (Barrons: 1997), pp 218-219. Nevertheless, this brings up the “pro-freedom” argument that single-payor health insurance might increase job growth. Again, this might give government the warrant to interfere with personal lifestyles, even if this has not happened much in Canada and western Europe. I remember discussing this with a middle-class family in a train station in Toulouse, France in early 2001, and the father’s answer was, “it works for us.”

109g The federal, state and local governments have long had special programs to employ the persons with developmental disabilities. Christopher Lee, in the Washington Post, Oct. 14 2003, “In Bethesda, Hiring Policy, ‘Competitive Sourcing’ Clash” describes a program in the scullery of the National Naval Medical Center, at risk in private outsourcing.

110 Recently, under a combination of ADA and state law, a life insurance company in California was forbidden from denying the spouse of an HIV-positive person coverage. Around 1990, Washington, D.C. tried to forbid even life insurers from requiring HIV tests, until many companies started to redline the city.

111 Geoffrey Cowley, "Flunk the Gene Test and Lose Your Insurance," Newsweek, Dec. 23, 1996, p. 48.

112 Repa, op. cit., p. 8/6, for a discussion of "required discrimination." Also, Clint Bolick, The Affirmative Action Fraud (Washington: Cato, 1996).

112a Ch 5 P 261, fn 112 Another controversy is whether employers and educational institutions may adopt qualifications which "inadvertently" cause statistical disparities between minorities. The Civil Rights Act of 1991 (an update of 1964) allowed government to engage in racial preferences only to correct past discrimination, but gave private employers wider leverage in using racial preferences and allowed lawsuits to be brought on the basis of "statistical imbalances" (Bullock, op. cit., p. 58). Bush was ultimately (in 1991) forced to sign a "quota" bill. Affirmative action, I think, tends to make us more conscious of race (an other categories) when most of us really want to forget it when left to ourselves.

Also, check Leslie Kaufman's "Toxic Employees," Newsweek, May 4, 1998, p. 46, for more discussion of frivolous lawsuits against employers as motivated by anti-discrimination, sexual harassment, and disability laws.

112b affirmac- contains a conceptual overview of the affirmative action problem.

113 See the ABC "20-20" segment (July 19, 1996) on abuses of the 1992 Americans with Disabilities Act. As for torts, we definitely need "loser pays." [Since 1994, judges have been allowed to order losing plaintiffs to pay attorneys' fees in frivolous copyright infringement suits. In Minnesota, "slip and fall" liability litigation now follows "loser pays," a fact which encouraged me to settle after my own 1998 acetabular fracture fall in a convenience store.] Tort reform cuts both ways with libertarianism; contracts need to be enforced, but the threat of frivolous and unpunished lawsuits has a chilling effect on commerce and speech. Perhaps we should also raise the standard of proof beyond a "preponderance of the evidence" in liability cases, but make sure that people guilty of wanton negligence (driving while intoxicated or using drugs, legal in the criminal code or not), pay in full. Indeed, the tort system makes us afraid to take necessary prudent risks (something dads teach their sons to do) - in the long run, making the world a more dangerous place for us all. See Tom Peters "A Nation of Wimps" in Forbes ASAP, June 5, 1995, p. 152, or Christopher Daly, The Atlantic ,Monthly, "How the Lawyers Stole Winter." See also Walter Olson, "Occupational Hazards: Why 'Sued if you do, sued if you don't' is the new rule in employment law," Reason, May 1997, p. 24. Libertarians often uphold the use of English common law, which is supposedly "fairer" that many statutes but tends to demand subjective decisions from juries. Many states are trying to replace common law with "positive" (statutory) law and to reduce the use of equity.

In fact, we can argue that some statutory laws to limit liability exposure (by defining "reasonable care" in exercising our obligations to one another) are important to have a libertarian society at all. We could discuss many examples: copyright law (with controversy over fair use, electronic copying and even for-profit status), product and premises liability. If we pass these laws, we need to do so without politicizing the interests of those affected, a very difficult call. Going the other direction is the statutory concept of "strict liability," that denies lack of knowledge as a defense.

113a Ch.5 P 262 pr. 1: p 175. In 1993, after the military ban debate, a few conservative Senators and congressman actually said they would not hire gays onto their staffs because gays were "bad role models". Again, this military-Cracker Barrel type of thinking. A very few employers really think they're offering the privilege of "first class" citizenship to those share in society's collective obligations: being part of the country's defensive chattel, and putting kids first. These moral concentrations become more noticeable when government gets out of the way.

Another imperative is to scale back the use of 'disparate impact," and allow employers to consider everyone's qualifications for a job on an individual basis, regardless of the way these decisions relate to head-counts by age and gender. Comments by the Supreme Court in a 1993 decision and several appeals courts already seem to nullify requirements that employers decisions on qualifications and salaries should have equal results across age groups. See Francis McMorris, "Age-Bias Suits May Become Harder to Prove," The Wall Street Journal, page B-1, Feb. 20, 1997. (See also note 130).

In early 2003, Miami-Dade Community College film professor, age 50, sued the producers of Fox’s American Idols for barring him for trying out based on a 16-24 age requirement.

113b Ch 5 P 262 fn 113 Numerous media sources (such as ABC "20-20" Aug. 16, 1997) have reported that the Americans for Disabilities Act has provided a shelter for unacceptable workplace behavior under the guise of "mental illness," although the EEOC denies this charge. This is the old "blame game." See also Mona Charen's column "Frenetic Guidelines Straight from the EEOC," The Washington Times, July 31, 1997. Charen points out that 374 listed psychiatric disorders qualify as genuine, protected "disabilities." Regarding "positive law," see Dave Edmonson, "Criminal Law: Is the Cure Worse than the Illness?" The Quill June 1993.

113c  In December 2002 Cracker Barrel’s (CBRL Group) Board of Directors voted to add sexual orientation to its list of non-discrimination categories. The Board believed that the shareholders would have voted to add the protection, despite an adverse recommendation from management. CBRL, along with Lockheed Martin, were two of three companies that scored a zero on HRC’s Corporate Equality Index. But now Lockheed Martin has also provided domestic partner benefits. According to HRC WorkNet, 298 out of 500 Fortune 500 companies now provide protection against sexual orientation discrimination (as of Dec 2002) and 180 offer domestic partner benefits.

In 2004, Cracker Barrel settled with the Justice Department regarding alleged racial discrimination in its restaurants. Story is at

113d  In the opposite direction, however, a shareholder (Hou-Yin Chang of Orangeburg, S.C.) of Coca-Cola with only 49 shares has introduced a proposal to withdraw Coca-Cola’s sexual orientation anti-discrimination policy. The company thankfully opposes the proposal and encourages to support its anti-discrimination policy. But if this single-person asymmetric tactic were successful, it could set a dangerous example or precedent for other companies.

113e  In a “heterosexual version of Cracker Barrel” a sheriff’s office in Wilmington, NC told an employee that she had to either marry her cohabiting boyfriend or move out, or lose her job, because of an 1805 North Carolina law against cohabitation. This would not have affected a male couple.   She was on “Good Morning America” on June 30, 2004, along with sheriff’s deputy Carson Smith. She did quit.

113f  ABC “World News Tonight,” on June 7, 2005, reported on other private businesses, especially small long distance phone companies, exploiting the cultural wars and especially trying to cash in on the backlash generated by the gay marriage debate. For example, United American Technology, is a long distance company in Oklahoma that, in telemarketing calls, bashes pornography and homosexuality. See the story by Jake Tapper and Goeffrey Bennett, “Conservative Phone Company Exploits Wedge Issues for Profit.” Of course, there have always been Christian book stores and church-owned businesses.

113g June 30. 2005: A gay man (Richard James Miller) has alleged discrimination against Denver employer AIMCO. A mediation held today at the Denver Anti-Discrimination Office (DADO) between the complainant and representatives of AIMCO has failed to result in a settlement of the case. The job involved managing apartments and the plaintiff apparently lived in one of the apartments. Here is the reference:{CE082758-3DC0-4B89-A41D-132CD74C3B4F}/Miller%20Press%20Rls%206-23-05.pdf   See an earlier case in PA at note 149.

114 A large number of employees received awards just because of their skin color, regardless of the merits of their own circumstances considered on a case-by-case basis.

114a  There are various indirect ways that employers can try to screen out older job candidates, and these may or not be illegal. In some states case law weights more heavily in favor of the older employee or candidate when “disparate analysis” is applied, even for age. For example, a company may require that an applicant for an information technology position have majored in computer science, a possibility excluded for the oldest applicants. Recruiters and outplacement counselors repeatedly advise older job applicants against giving too many dates on resumes. Of course, some age qualifications for jobs (whether as actors or firemen) are obviously bona fide in any community.

Here are some sources: Peter Whitfield, “Don’t lose your legacy staff”, Computer Weekly, March 8, 2001, p. 38

“Over 40s IT staff face gloomy job prospect,” Computer Weekly, March 26, 1992, p. 70 (1)

Anne Covey, The Workplace Law Advisor, Perseus, 2000.

114b Adam Cohen provides an interesting commentary “Too Old to Work: If you’re over 40 and work for a big company, your future may well be tied to the fate of 6,400 Allstate agents who refuse to be ‘streamlined.’” In New York Times Magazine, March 2, 2003, p. 54.  The class action lawsuit involves Allstate’s making many of its agents independent contractors without benefits, and the claim that this action has a disparate impact on older agents.  It is not yet clear how disparate impact (when balanced against business strategy) affects age discrimination law, especially in areas like loss of group health insurance. But it is surprising to me that picking on older agents (who know how to sell to baby boomers) would really make business sense.

115 Jack White, "Texaco's High-Octane Racism Problems," Time, Nov. 25, 1996, p. 34. New York City's Interfaith Center on Corporate Responsibilities invests in specific stocks in order to influence company policies.

116 Patterson and Kim, op. cit., p. 237. And remember the Bakke (medical school admission) case of reverse discrimination!

116a Ch. 5 P 262, fn 116: Some on the Left still insist that "colorblind" admissions to schools or jobs based on test scores is still racist by intent. Now, were I black, I would find the notion that less is expected of me in terms of performance on a test to be plainly insulting.

117 Some of my friends speak of a "libertarian left," reverting to classical liberalism, and insist that some legal protections are necessary because employers have enormous advantages in scale over individuals. There is also a "libertarian right," for example, the group Libertarians for Life.

118 The 1982 landmark film on gay romance, Making Love, contains a surprising passage where a doctor lectures on the importance of personal competence and the need to punish poor performance.

119 In information systems, mainframe skills are enjoying a sudden resurgence at financial institutions because of the century change at year 2000; afterwards, there will be a glut again. Open systems require more mental agility. (But see note 137.)

120 A 1990 newsletter from the Institute for Certification of Computing Professionals recounts many instances of gross technical incompetence and basic knowledge defect in highly paid computer professionals. Productivity tools have let people get soft on, say, dump solutions or programming efficiency. (See also note 137).

121 The Washington Post, Jan. 25, 1997.

122 Most "experts" encourage older workers to disguise their ages on resumes anyway.

123 Legalization of most drugs might encourage employers, following the example of public schools, to ban all non-prescription medicines, such as decongestants. This is already true in aviation (as I found out when I took a flying lesson) and car-racing. In the 1980's there was vigorous debate over workplace random drug testing, which generally was replaced with pre-employment and "for probable cause" testing. A few companies are so adamant about drug testing as to test their employees' (scalp) hair, which can show past cocaine use for up to three years. Rarely, employers have fired workers for off-duty smoking and alcohol use. See Robert Covington, Kurt Decker, Individual Employee Rights (St. Paul, West, 1995), pp 358-366 for technical discussion of employment drug testing, with such tests as EMIT and GCMS, and measures of specificity and sensitivity.

123a. In fact, the Olympic Games, Tour de France, and many other athletic competitions ban the use of “performance enhancing” substances even when these substances are legal.  FIDE, the international chess association, has seriously entertained testing contestants for drugs, even for legal substances, even caffeine.  There has been talk that this could eventually be done for weekend Swiss tournaments!   (Chess Life, May 2000, letters to GM Larry Evans, p. 12).

123b Drug testing, which continues to get more sophisticated. False positives for over-the-counter legal medications and second-hand exposure to marijuana may rarely happen (and that could put more presumptive responsibility on job holders), and Judge Judy recently had an episode in which the hair test was used (involving crotch hair cutting) to see if a plaintiff in a libel case had ever used drugs. A “false positive” may indicate that the applicant or employee attends events or bars where marijuana is used and might be breathed second-hand.  As of 2004, hair tests may become much more common in employment soon, and could prejudice someone who has ever used an illicit drug even once, or been unknowingly exposed. 

There is, however, controversy over how big a problem second-hand use poses, even if the hair test is used. For marijuana see


The identification of over-the-counter decongestants and sprays as amphetamines (which chemically they are) may be a bigger problem in practice.

123c. On Feb 8, 2004 ABC “World News Tonight” ran a story about Weyco, an employee benefits services company in Okemos, MI, which as of Jan 1, 2005 instituted a policy forbidding employees to use tobacco even off the job, and which enforces the policy with random nicotine tests. Employees who fail are terminated.  It is not clear as of this writing how the company would deal with false positives, or the possibility of a positive test from second hand smoke, as in a bar (although for marijuana, for example, the possibility of a positive test from second hand smoke is rather remote; tobacco and nicotine may present more of a second-hand positive test problem—if more companies adopt policies like this-- and could reinforce calls to ban smoking completely in restaurants, bars, even dance floors!). The company cites employee health care costs as a major motivation. The AOL news story is at . Weyco’s account of its policy is at  and  Weyco claims each smoking employee adds an addition $4000 of cost per year, and that each Michigan household pays $557 per year for other people’s smoking. Many observers are surprised to find that this is perfectly legal (and “libertarian”) under the doctrine of employment at will. Alaska Airlines does pre-employment screening for tobacco use. Investors Property Management in Seattle will not hire smokers, and will not provide medical insurance to existing employees who smoke. I would have concern that similar reasoning could be used to justify HIV testing. Stephanie Armour covers all this in USA Today, May 12, 2005, with “Trend: You smoke? You’re fired!” and mentions that overweight employees, associates with high cholesterol, or risky behaviors are becoming targeted. John Stossel supported Weyco’s rights with typical libertarian logic in his “Give Me a Break” segment on ABC “20/20” April 8, 2004.

There is an article by Randy Dotinga in the Jan 11 2006 Christian Science Monitor, “Can Boss Insist on Healthy Habits,” at

123d.  The Borgata Casino in Atlanta City has implemented a policy requiring “costumed positions” (cocktail waitresses) to maintain body weight within 7%--or else accept a company-paid weight loss program or be fired. These tipped positions pay less ($4.50 per hour) than the minimum wage. Some have claimed that this amounts to age discrimination.

123e  There have instances where pharmacists refuse to fill prescriptions (for morning-after abortion pills or even for contraceptives) based on their moral or religious convictions. Drug store chains allow this if the pharmacists will give referrals. Personally, I believe that if one does not want to follow an employer’s directions one should not accept a position that would require one to behave in a manner contradictory to one’s own beliefs.

123f  Michelle McCusker, a kindergarten teacher at a Catholic school St. Rose of Lima in Brooklyn, New York, was fired from her teaching job after she told the school she would carry her baby to term and not marry the father. She was fired for contradicting Catholic teachings by personal example. She claims that she could have had a secret abortion and gotten away with it. Josh Getlin, “Unwed. Pregnant Teacher Battles Catholic Church in N.Y. Over Firing,” Los Angeles Times, Nov. 28, 2005.

123g  A Daimer-Chrysler plant in Kokomo, IN requires employees to drive Chrysler cars and tows any others to Indianapolis, 50 miles away (12/2005).

123h  The Indo-Asian news service reported on Oct 17, 2005 that Digital Angel Corporation has developed an implantable rice-sized chip to implant in the upper arm of a person, which would enable him or her to be tracked.   There are reports that a few high-security employers are trying it. The government has supposedly approved it only for medical purposes.

123i  Clarian Health, a hospital chain in Indiana, has announced that it will start fining employees who fail to meet health parameters (obesity, smoking, body mass index, etc) in 2009 for representing a health insurance risk. Other companies are using carrot approaches to get employees to enroll in healthful programs. According to Price-Waterhouse, 62% of executives believe that employees with unhealthful behaviors should pay a greater share of health insurance costs. The story appears on p A1 of The Washington Times, Aug. 13, 2007, “Firms dock pay of obese, smokers: Aim to stifle health care costs”, by Gregory Lopez. What about the risks of STDs? Later media reports indicate that Clarian replaced this with a “tangerine wellness program.” Miracle-Gro has also been reported to penalize workers for off-the-job smoking and failure to take health assessments. 

123j  Michelle Andrews, “America’s Best Health Plans: Desperate to Control Healthcare Costs, Employers Are Rolling Out Wellness Programs With Teeth,” U.S. News and World Report, p. 55, Nov. 5, 2005. Link. More discussion of Clarian, Pitney-Bowes.

123k  On Nov. 12 2007  NBC Nightly News reported that the Cleveland Clinic, the largest employer in Cleveland, Ohio, will not hire smokers and has aggressive wellness programs with all employees. There was a controversy over the presence of McDonalds in the hospital’s cafeteria.

123l  April 22, 2008: In a story reminding one of Weyco, Whirlpool Corp. in Evansville IN suspended 39 employees for lying about tobacco use on company health insurance applications. The AP story by Tom Murphy appeared on AOL here.  The AOL polls showed the public somewhat supportive of the company in this case.

124 Conflict of interests is distinct from "misappropriation" (stealing an employer's information or resources) and breach of loyalty. Conflict of interest sometimes limits the way an associate can spend her own money!

For example, in a few states employees of financial institutions and certain other businesses may not make campaign contributions, even on their own with their own money, even non-management employees. See also note 132b.

124a  On Dec 22, 2003 The Washington Post had a consumer letter about a salaried accounting employee who lost money when forced to sell personally owned stock by a sudden change in his employer’s conflict of interest policies to comply with a perceived new requirement from the Securities and Exchange Commission.

124b A senior police chief with the National Park Service was placed on leave and threatened with termination in December 2003 for “improper lobbying” and disclosure of confidential budget information when commenting about being forced to redeploy police to meet administration security priorities.

124c Rob Stein, “A Medical Crisis of Conscience: Faith Drives Some to Refuse Patients Medication or Care; Some Health Workers Assert a ‘Right of Conscience’,” The Washington Post, July 16, 2006.  Some states have proposed or passed laws that (1) allow a pharmacist to refuse to fill a prescription (2) Allow certain health care workers to refuse to provide certain services (such as artificial insemination of a lesbian) or (3) require pharmacists and health care workers to provide services. One of the major issues is abortion, including the “morning after” pill. A major concern is whether a person is personally guilty of a moral sin if doing a job in a manner normally required by a licensed profession.  

124d Liza Nubdy, “Souls on Ice: America’s human embryo glut and the unbearable lightness of almost being,” Mother Jones, July/Aug., 2006, p. 39, also takes up the Right of Conscience in conjunction particularly with insemination of unmarried women and particularly lesbians.

125 Some employers, especially banks, are particularly careless in making many of their associates "officers," which would seem to limit these employees' personal freedom further. There is a common misconception that only officers are legally personally liable for wrongdoing by a corporate employer. Anyone can be liable for a tort (discrimination, harassment) when she violates stated company policy and has discretionary control over a subordinate or a customer; there have been personal liability claims associated with the FMLA and FLSA [and sometimes copyright infringement]. See Paul Kennedy, Robert Tisch, "When Supervisors Are Sued," Human Resources, Jan. 1997, p. 124.

 125a Ch. 5 P 265 pr 1. See Joe Rudich, "Moonlighting," Computer User (Minneapolis Mn), May 1999, p. 9. This article focuses mostly on earning extra income by programming on the side. But in at least one case an IS professional was forced to back down from a book contract (of his own) because of his employer's objection. See also Eric Wieffering, "Sending a Message," Minneapolis Star Tribune, May 30, 1999, about posting comments about companies on Internet discussion boards (such as those run by Yahoo) which are sometimes made by employees who own stock. There have been instances of (illegal) manipulation of stock prices by the posting of false (takeover) rumors.

125b Ch 5 P 265 fn 125. Newsday's James Toedtman (as reported in the Minneapolis Star Tribune, May 31, 1999) reports a case where the IRS held a young CFO of a small company personally liable for the unpaid taxes of his employer.

125c  Montgomery County police chief Charles Moose (launched to fame in the Maryland-Virginia sniper cases in October of 2002) has since raised a “conflict of interest” question (balanced by free speech) by starting a security business and apparently signing a book contract on his own.

126 Programmers are used to doing what they want with their own lives (when not working overtime), but many consulting companies advertise for clients by using their staff's resumes. Attorneys have given me varied opinions on whether targeted customers alone would cause a conflict of interest; the general reading of common law is that conflict exists when a person's judgments exercised by his job may affect customers or subordinates; see the Tacoma reporter case in a subsequent note.

126a. Let me just add that the adversarial nature of the business and political worlds does indeed tend to contradict the need for objectivity in completely reporting all sides of an issue to customers or readers (the kind of objectivity we were supposed to learn when we wrote term papers in high school and college

126b Some states, such as California, do have statutes specifically prohibiting employers from disciplining associates for off-duty speech in many circumstances, and even for personal statements. A judge in California ruled that an employee could not be discharged for "coming out" when his speech could reasonably be construed as non-commercial political expression. It's less clear what most courts would rule when a person's speech has substantial commercial or publicity value as "conflict of interest" (again, see Tacoma case).

In 2003, technology journalist Henry Dorr was suspended and then dismissed from the San Francisco Chronicle after participating in a demonstration opposing the war in Iraq. The Chronicle, apparently after the fact, implemented a policy prohibiting newsroom employees from participating in war-related demonstrations. LaborNet (in an article in NWU’s Summer 2003 American Writer) claims that if such a violation of California political speech laws (barring employers from interfering with employee off-job speech in most circumstances) could stand, fast food employees could be prohibited from anti-war demonstrations for fear of driving away customers. Of course, public relations are not part of a fast-food worker’s duties. See

126c  However loyalty sometimes is enforced. In June 2003 Coca Cola fired a union truck driver for drinking a Pepsi on the job, although some believe that the firing was motivate by his union organizing.

127 The federal Employee Polygraph Protection Act (1988) bans the use of most lie detection except for jobs involving security, handling drugs, or when there is suspicion of theft. Recently, large employers have been giving multiple-choice personality tests to screen candidates, especially for executive and marketing positions; it is unclear whether some of these will be found to contain gender or racial bias. See Barbara Repa, Your Rights in the Workplace (Berkeley: Nolo, 1994), chapter 6 for a complete discussion of current employment privacy law. 

127a Ch 5 P 265 fn 127. In 1999, the Department of Energy plans to polygraph many of its employees and contractors over leakage of secrets to China. Is the polygraph reliable enough for national security concerns or not? Does a person have a "due process" right not to be fired for wrong polygraph or voice stress analysis test results?

The FBI is now reportedly looking at a “brain scan” polygraph which has already been claimed to have freed an innocent man (CBS “60 Minutes”). 

127b Ch 5 O 265 fn 127 on March 8m 2004, ABC “Good Morning America” presented a story about “brain fingerprinting,” a technique of reading brainwaves generated by recognition (the waves are called “p300 murmurs”), developed by an individual named Farwell. The device is being used already in death penalty cases. Farwell suggests that one can use it against persons suspected of child sexual abuse.  Could it be used for pre-employment, suspected theft, and the like, or even security clearances? Could it some day be used for sexual orientation? It’s scary. The test appears to be uncomfortable and to require shaving part of the head.

There is a company called “No Lie MRI Inc.” that can scan the brain for hot spots when the subject lies. Joel Huizenga is one of the founders and hopes to build a franchise of these companies. It is conceivable that they could be used legally. They could be used to ask if anyone has ever used illegal drugs. Amy Joyce, “Before Scoring the Job, You’d Better Ace the Test,” The Washington Post, June 8, 2006.  This article also discussed the used of personality tests by companies in screening (as use by SER Solutions and the National Football League), problems that these tests (like the MMPI, the Minnesota Multiphasic Personality Inventory) run into with the Americans with Disabilities Act. Brainbench (a company that I have written test questions for) has developed a test for sales ability (it is well known for technical skills assessments in computer programming and various academic subjects, a use of tests that would seem the most legitimate—perhaps the company could get into the business of NCLB SOL testing, I would think!). 

127c Ch. 5 P 266, provision (2): The IRS code now (as of 1998) allows some use of pre-tax dollars for self-employed persons (business owners) to buy health insurance. The deduction is 45% of qualifying expenses for 1998. The deduction will increase to 60% for 1999, 2000, and 2001, 70% for 2002 returns and 100% thereafter.

To take advantage of the deduction, the (individually owned) business must turn a profit and, in the month the premium is incurred, neither the filer or spouse can be eligible for an employer's health plan.

127d Ch.5  ABC “Good Morning America” presented a story on July 22, 2004 about a woman who was arrested when returning a clothing article to Banana Republic and accused of presenting a false receipt (essentially attempted shoplifting). Tortuous investigation showed the store to be wrong, and the charges were soon dropped. But she lost her job and has been unable to work in financial planning since. Of course she is suing for false arrest. But the point here is that employers sometimes will be very strict in expecting the employee to protect his own reputation. There is no “constitutional right” to a high income. So employees victimized by identity theft, or inaccurate charges of sending spam or child pornography actually sent by a hacker can be harmed indeed. Our “go-go” culture has not yet come to terms with this kind of problem.

128 Security might be jeopardized by the cost-cutting frenzy typical in the early 1990's, with the superficial savings by decentralizing processing from mainframe to client-server and (sometimes) the temptation make programmers into "jacks of all trades" and to skimp on separation of functions. One mortgage company switched to open systems and was down a week almost immediately after a virus.

128a.  Amy Zuckerman, James Kaczman, “The Fight for Lingua Franca,” Business 2.0, Oct. 24, 2000, p. 202, presents the two paradigms for determining professionalism in an industry’s product development and services: “consortia” v. “standards groups,” a discussion which fits any voluntary attempt of an industry to define proper behavior by its members.        

129 See Chapter 6 for California Initiative 209. When colleges end affirmative action, they may find themselves excluding African-Americans if they rely too much on certain written tests. Ellis Cose, "Color Blind," Newsweek, May 12, 1997, p. 58.

130 Frank McMorris, "Age-Bias Suits May Become Harder to Prove," The Wall Street Journal, p. B-1, Feb. 20, 1997 (op. cit., fn 112). Comments by the Supreme Court in 1993 and several appellate courts seem to contradict earlier assumptions that employer qualifications on salaries and layoffs have equal impacts across age groups.

130a. The flat tax is discussed in many places, such as the chapter "Tax Reduction" in the Cato Handbook for Congress (Washington: Cato Institute, 1995). The conventional income, it is argued, penalizes both work, success, and capital formation. Dick Armey (Texas) had also proposed a 17% flat tax. But a flat tax could change financial planning and investment strategies considerably, and suddenly.

130b.  Regarding employer-paid pre-tax health benefits (apart from the same-sex domestic partnership issue discussed elsewhere), my own experience with managed care and surgery was that, when I got the proper referrals, the total cost (in Minnesota) was maybe half of what it would have been under fee-for-service. So this could be a counter argument favoring employer-paid insurance.  However, some employers are experimenting with pre-tax grants with the responsibility for health-care purchase going back to the associate.  How will older associates fare under such developments? 

130c  In US News and World Report, Nov. 5, 2001, “Job Jitters”, by Kim Clark.  In discussing the layoffs following the dot-com implosion of late 2000 through 2001 and then the terrorist attacks of September 2001, Clark offers the usual advice about measuring “in numbers” the contribution of your performance to the bottom line, both in terms of job performance and the direct relationship of you position to revenue. But layoffs in large companies sometimes do follow the expectations of anti-discrimination laws and disparate impact. “Rick Real, a senior compensation consultant at Wyatt Worldwide, says large companies typically make managers send their lists of layoff targets to lawyers.  The lits are painstakingly checked to make sure members of a protected group—women, people over 40, or racial minorities, aren’t disproportionately targeted. If they are, the lawyers alter the mix…”  But there are variations.  Some companies lay off (just as they pay) by performance, even including peer ratings (as well as management assessments – peers can be hard to fool!) in decisions.  Other lay off by numbers and with as little specific nformation about the individual employees affected as possible (to prevent discrimination claims) and this may become more common with larger companies in the future.  In some companies, middle managers and team leads are particularly vulnerable, whereas in others a record of past promotions is seen as an indication that the employee is valuable and dedicated. See labor discussion.

131 Associates in sensitive positions could be held responsible, over time, for keeping their credit histories accurate and favorable, with discipline for exceeding thresholds for late payments, judgments, or foreclosures. They could even be held to limitations on consumer and mortgage debt based on income. (The law, surprisingly, usually does not allow employers to terminate for a single garnishment). Some authorities in human resources literature warn, however, that employers must be able to show a specific job-related reason for credit-worthiness.

132 In Tacoma, Washington a reporter was involuntarily transferred to a copy-editing position for publicly visible political activities on her own time. The state supreme court ruled for the newspaper in February 1997, on the grounds that a newspaper needs to protect its public appearance of objectivity in reporting news.

132a  ABC investigative reporter John Stossel told an “American Experience” breakfast in Minneapolis in December 2000 that in his earlier days as a consumer reporter for the networks, he was “biting the hand that fed him” since apparently some of the companies he reported on were sponsors of networks paying his rent.  But, objective reporting was his job, so “conflict of interest” can work both ways in the journalism field. In recent years, Stossel has become a proto-libertarian exponent of less government regulation and more private innovation.  Private initiative and technological advance saves more lives than it threatens, even when regulation is relatively moderate. Would government let us drive cars if the auto had just been invented today?  See note 174b for another newspaper situation involving a non-journalist, though. 

132b Many newspapers and media networks ban individual political contributions by journalists or newsroom employees, although they seem to happen anyway. See “Journalists Not Loath to Donate to Politicians: Media Companies’ Policies Vary Widely,” by Howart Kurtz, The Washington Post, January 18, 2004. Media companies sometimes find out about these contributions from the FEC, the Federal Elections Commission. (I am not a professional journalist, however I rarely have made any partisan political contributions; I do contribute to advocacy organizations.)

132c  The Washington Blade, on April 2, 2004, ran a disturbing story “Conflicts of Interest” by Ryan Lee, to the effect that in numerous instances gay journalists have been removed from covering gay-related stories or even terminated because of the appearance that their stories would not be objective. The newspaper industry might even be more sensitive now because of fabrication scandals in recent years (outside of gay issues). For example, the San Francisco Chronicle removed Rachel Gordon and Liz Mangelsdorf from their beats coverage gay marriage after they received marriage licenses in fromt of San Francisco City hall in March 2004. The Chronicle issued this statement: “Chronicle journalists directly and personally involved in a major news story — one in whose outcome they also have a personal stake — should not also cover that story.” However the Lee article reports that there are many other incidents where GLBT journalists have been reassigned recently. For example, freelance journalist Jay Blotcher was questioned by editors from the New York Times for all of his stories (not necessarily gay related) and then his contractual arrangement terminated because of his previous work as a media coordinator for ACT UP in 1989-1990. (The specific link for discussing his termination is this and it is quite disturbing.) According to the Blade, Kelly McBride, an ethics professor at the Poynter Institute, a journalism think tank, comments “The current standard for determining conflict of interests is not only did the journalists enter the story, but did they enter the public debate,” McBride said. “I don’t know that the act of filling out a marriage license document is participating in public debate.”   

Link is

The NLGJA (National Lesbian and Gay Journalists Association) provides this statement by Executive Director Pamela Strother and President Steven Petrow, at For example:

“So, how do editors determine when a personal stake in a story goes too far? Many analogies have been put forward over the past few days. Does this mean a female reporter who has had an abortion may not cover that issue? Does that mean that an African-American editor who experienced some form of racial discrimination should not cover race issues?:

As I have indicated elsewhere at this site (and in both DADT books), I am very concerned about this kind of conflict over work and “self-promoting” speech outside of work, in other areas. For example, what about teachers? What about the military (and the military ban)? What about lobbyists and spokespersons. This is especially pertinent in the days of  “Google hacking.” I have covered this at this link:

Bryab Anderton also provides a discussion of political contributions by journalists and publishing executives responsible for editorial content, in The Washington Blade, Aug. 20, at It is acceptable for owners of publishing companies to contribute but apparently not for journalists and editors (which again tie in to my own conflict of interest rules at

132d  Randal Terry, the founder of the pro-life organization “Operation Rescue,” provides The Washington Times (April 13, 2004) with an op-ed “Outing Out Magazine,” in which he claims: “My son, Jamiel Terry, was paid $5000 by Out magazine to write a story about being Randall Terry’s homosexual son. I’m still in a state of shock… Most painful to me as a dad is that my son prostituted my name for $5,000; he sold out our family’s privacy for cold hard cash.”  Of course, who owns that “right to publicity”—is it Jamiel with his own life, or is it Randall?  The Washington Times loves to pour ice water on dental pulp itself. The Out story is the front page feature story (apparently for May 2004) at  Users may have to search for it (or preferably buy a copy) once another issue is published. 

Michael Powell covered the Terry situation in detail in The Washington Post Style section on April 22, 2004: “Family Values: Randy Terry Fights Gay Unions. His Son Never Will.”

133 Labor unions, of course, have always tried to do this by demanding political solidarity of members and spending their dues on political campaigns. Libertarianism would certainly support state right-to-work laws but would probably maintain government should never interfere with collective bargaining from workers who want to be unionized.

133b 1Labor union disputes have sometimes gone wrong for gays, as in a case in Massachusetts when a gay member (Peter D. McGarth) of management was targeted with anti-gay and offensive comments as a “scab” by striking union members (at Commonwealth Gas). In an extremely detailed article by law professor Arthur S. Leonard, “Limits on State Gay Rights Law Appeals: Court rules federal labor law might preempt Massachusetts civil rights protections”, at Leonard relates that federal appeals court judge Nancy Gertner indicated that federal labor relations law superseded state gay ENDA-style law. Federal law apparently does not explicitly prohibit homophobic remarks in union pickets and demonstrations and has tended to forgive highly emotional or adversarial behavior during labor demonstrations. But the tendency of rank-and-file union members in a blue-collar environment to use homophobic remarks does show the resentment of some “family breadwinners” against “yuppie class” members whom they think don’t accept such responsibilities. This sort of problem is one reason why I have not wanted to move into management during my own career.

134 Protecting whistleblowers certainly serves public policy, but does a person really have a right to continue to depend on an employer for income if he knows that employer is behaving illegally or blatantly unethically?

134a Kathleen Day, “Whistle-Stop Campaigns: Some Firms Are Trying to Limit Protection of Workers Who Expose Wrongdoing,” The Washington Post, Business, P F1, April 24, 2006, discusses limitations within the whistleblowing provisions of the 2002 Sarbanes-Oxley Act. Only about five court suits have been won by employees. One particularly troubling case involves Nova Information Systems, Inc. (a subsidiary of U. S. Banccorp, which is visible in Minneapolis) , fired Neil Walton, who had maintained that security controls were inadequate; according to the company, only breaches that threaten shareholders are protected by Sarbanes-Oxley.

135 Another good idea would be for employers to willingly treat their employee manuals (for both salaried and hourly associates) as contracts, so that "at will" termination does not come as long as the associate doesn't break the contract. Every associate should know the rules when she comes to work, and employers and associates ought to be able to agree upon the rules in advance, according to our notions of "freedom to contract." Only recently in some states have courts rules that employee handbooks do imply "enforceable" (procedural) rights of due process in termination; the common law idea that employment rights are not enforceable seems to have been copied by government in the military ban and in security clearances.

135a.  In Florida, there was (in the late 1990’s) a bizarre case where an employer “bought” an associate’s business in exchange for lifetime employment, to appease a conflict of interest. The the employer discharged the associate anyway under employment at will. 

 136 The Fair Labor Standards Act (FLSA) supposedly limits the right of an employer to treat an associate as a contractor, such as to situations where employment is temporary, where associates provide their own materials and method of work. In practice, employers have wide discretion to use "freelancers."

136a Ch. 5 P 267 fn 136. In the late 1990's there has been some reversal of the view that temporary or outsourced workers are really easier on the bottom line. See also Barb Cole-Gomolski, "Ruling May Give Temps New Rights," Computer World, May 17, 1999, about a Ninth Circuit ruling that Microsoft must offer some temps the same right to stock purchase opitons as permanent associates; this decision could affect other benefits.

One point is to remember is that it is common to use various compensation schemes even for "employees," and these can include salaries, wages, bonuses, commissions, and piecework, and this could be administered at the "team" level and even include contractors in some situations. A key concept, not always well-defined, is whether the expectation ny a personof major income from one "employer" is indefinite. See more discussion at the doaskdotell labor link.

137 In May, 1996, a "Team Act," which would permit companies to set up management-labor work teams in certain union shops, was introduced in the House.

The opening up of the Internet to the public in 1992 (by its release from the National Science Foundation) led to a resurgence of information technology jobs in the "open systems" sector, and tended to siphon away younger professionals from competing with older "grizzled" mainframe programmers (who, according to some computer journals, “know who they are” when they cannot easily learn object-oriented thinking and “sexy” programming languages). So there seems to be less tension between "team work" and individual competition than there was earlier (when, frankly and often as a response to downsizing pressures, there was a lot of pressure on well-paid professionals to prove they could be depended upon to solve problems by themselves in emergencies, and for managers to do the work of the people they supervise). Nevertheless, IT would be well to expand upon the certification concept, right now supported by the ICCP (note 120) and by open systems software vendors. Education "handyman companies" could set up regional centers to certify professionals with hands-on "lab practical" tests and intense career planning interviews, to benefit both employers and processionals. Important attributes to test would include mental agility (the notorious trap-door "IQ test – no problem-solving ability”), attention span, work habits, application practices, retention of less frequently used skills (like dump analysis or software package setup). Outside auditing companies could evaluate the integrity, coding standards and application best practices (and systems development procedures) with which systems are developed and installed, in order to give them more credibility. Certainly, today's IS environment, with its emphasis on piecemeal agility with purchased packages rather than on writing in-house applications, demands a mental quickness, attention, curiosity and versatility that was not always expected in the past, where an employee might “own” a narrow range of work for many years. Many professionals are not confronted with their weaknesses in this area until faced with management, ownership, or outside financial or audit pressures. [See also the "IS ethics" essay at this (doaskdotell) site.]  So we have a paradoxical situation, where techies or geeks with the immediately hottest skills (and sometimes the “jacks of all trades,” people whose orientation to life is objectively curious enough for them to absorb new stuff quickly) are courted with perks, and others are expected to prove that they “deserve” their incomes by giving away their time.  The trend to distributed processing and decentralization of technology (while centralizing administration) may reflect the growing ability of bright individuals to invent their own paradigms (on an employer’s dime) and force others to perform to play the job performance game by their rules.  Distributed processing does indeed fit the self-managed “team concept” (where the team is a profit center controlling its own budget), but care must be taken to use economies of scale properly in operations and in common, underlying infrastructure (otherwise redundancies occur as teams “reinvent the wheel”).  Whatever the “labor shortage,” a lot of people will have trouble paying their bills. 

Author Marcus Buckingham, on “Good Morning America” in October 2000, talked about how some people become hard-wired to have certain job aptitudes by the end of childhood.  Some people are tinkerers, and some people are more content-related.  Yet, when I was growing up every boy was expected to pay his dues by doing tasks expected of all men, regardless of aptitude. This gets to be a “moral issue” in the workplace.   We could cross relate job aptitudes and requirements to the “polarities” in Chapter 3: whether one will promote the work of others as opposed to one’s own ideas (balanced v. unbalanced) and whether the jobs require leadership and action, or thought and perception. 

The “dot-com” economy will certainly encounter the swings of other sudden-boom industries, as investors expect them to make profits (the layoffs are already starting in the spring of 2000).  But the “dot-com” paradigm certainly raises double-edged questions about balancing innovation with old-fashioned loyalty, professionalism, audit, and separation of functions.    

Much has been made in this chapter on the "Darwinian workplace" of the late 80's and early 90's (see also note 107). However, see Helena Cronin's article, "Only the Pronoid Survive," Fast Company, Nov. 1999, p. 330. Cronin argues that Darwinism actually encourages altruism as (when expressed in genes) something that encourages one individual to put his progeny above himself. (A brightly colored male bird draws predators away from females). This translates into business, where generosity, helping stakeholders (customers and employees) just makes good sense. This fits in with the libertarian notion of "spontaneous order." As for creationism, well, it invokes "the philosophy of science."

Sherri Cruz writes, in the Minneapolis Star Tribune (Aug. 27, 2001), that programmers are now criticizing the H-1B visa program for technology workers, which was created during the run-up in demand during the Y2K fix and Internet buildup, but which now simply allows employers to hire “cheaper” foreign labor, as with blue collar work, particularly undermining what independent contractors can charge. The organization speaking up is the Programmers Guild. Ironically to find traditionally libertarian IT workers suddenly racing global competition with those having lower living standards,

See, What IT Labor Shortage? Redefining the IT in "IT Professional" By Catherine Beise and Martha Myers, presents a hard-hitting view of the new job marketplace, with its desire for younger employees (often single) willing to put in long hours for someone else’s goals (perhaps with a questionable or limited business model), and frank ageism, the idea that older IT people conditioned by structured design and proceduralism can’t learn OOP (object-oriented programming) and get the necessary quickness.

137a  More still about “social Darwinanism  comes out of the “reality television” (“reality T.V.”) crase with shows like “Survivor,” where people make all kinds little primate alliances.  A survivor has to impress his peers as well as his “boss.” Again, ironically, Darwinianism implies a degree of cooperation.

137b  The Internet and the focus on external customer is also increasing the proportion of technical jobs which (as structured and paid) require 24x7 “night owl” shift work, especially weekends and early “graveyard” hours when technical maintenance may be performed.  Increased used of shifts can reduce dependence on unpaid nightcall. Some people would find it more difficult to function and carry on a personal life in this kind of environment.

137c  In Peggy Simonsen, Career Compass: Navigating Your Career Trategically in the New Century (Davies-Black, 2000), there is a functional decomposition of careers into several types: “portfolio careers,” “lifestyle-driven careers,” “linear careers,” “expert careers” (including “geek” careers, which require very quick turnaround in technical agility as mentioned above), and “sequential careers.” (P. 45).

137d.  On April 28, 2002, the “Tech Watch” column by Bob Weinstein from InfoTrack and King Features Syndicate ran a story, “Mainframes are still around, and so is the demand for programmers.” The story mentioned a study by the Meta Group, of Stamford, Conn., about the age demographics of mainframe IT skils (now very waited toward older people, even those over 50) v. open systems technology, which is very much dominated by the young. Will mainframe demand come back for older workers, or will companies tend to outsource their legacies to India or rewrite them in client-server environments. The compromise seems to be using mainframes as repositories for databases but connecting to them with the newer “geeky” technology.  You can get different points of view from an advanced Google search on “Meta Group manframe”.

 138 These subunits might be construed similar "S- corporations," where the owners are taxed personally as if they were proprietors, with businesses themselves paying no corporate income tax.

138a There is a certain paradox in the modern business world. Some functions are better decentralized (performed by end-users with direct contact to public customers); however taking advantage of the "economies of scale" of consolidation requires (shorter term) development, too. Here, the customers will be internal. A good paradigm is that one should have the same customers as the business entity that pays one's income. In information systems, we are certainly seeing a shift in the paradigm, from automating repetitive but simple high-volume processes for large businesses for serving complex needs of individual customers in a decentralized manner (e-commerce, individualized entertainment, games).

138b  Since we got through the Y2K “crisis” many employers have backed away from heavy dependence upon contractors and temps. Partly this is associated with the 2001 economic slowdown and “technology bubble burst” but some of it is because managed care and other technological innovations (facilitating telecommuting) is giving very large employers an advantage in giving their associates competitive benefits.  A good question is whether we could use productivity gains to reduce the workweek, possibly with some preference to those with dependents.

139 One factory in Ohio starts every new worker as a temp, and lets the permanent employees "vote" the temps in to permanent positions! Today, most companies keep salary and personnel records confidential with each employee.

Ch 5 P 265, pr. 1. So the salaried professional may compare his situation to those "proles" upon whom his lifestyle depends, as (in the other direction) executives who get rich off of bottom lines. Sometimes it seems Wall Street rewards companies who cut upper middle-class payrolls.

Ch 5 P 265 fn 125: An editorial employee of a publisher could be held personally liable for an author's copyright infringement.

Ch. 5 P 265, pr 2: Of course, with the erosion of loyalty (following from the downsizings and mergers), many associates will tend to feel they are free to do exactly what they want with their own time and resources. But the lines are not always so clear. We get back to a change of wind, over the virtue of expressing your opinions v. keeping your mouth shut.

140 The New York Times, Sept. 5, 1994, Business Section.

141 President William Jefferson Clinton, Between Hope and History (New York: Time, 1996), p. 96. NUCOR, despite its variable compensation, offers tuition bonuses for children of employees. Clinton also praises Starbucks Coffee for offering health care (and even stock options) to part-time associates. It does seem that corporations are (very recently) beginning to realize that a stable workforce can help offset training costs, and maintain customer service and loyalty. Note the works by Peters on the importance of training and customer service.

141a In the 1970's, I was sometimes expected to be on call Friday night and Saturday some times for the benefit of some employees who could not work for religious reasons. But I expected to excepted time in return.

142 Henry Hyde, "A Mom and Pop Manifesto," Policy Review, The Heritage Foundation, Spring, 1994, p. 29.

142a Ch 5 P 268, pr 4: Regarding the idea of favoring a sole breadwinner, one can say that the two-earner family brought a higher-standard of living to many families (not in the "ruling" or management class) and is, in a sense, therefore "pro-family." This cuts both ways. Check the Oct. 1997 Out for the article "Who Benefits?" for discussion of the notion of getting single people to "work at a discount."

142b.  The family wage idea comes up in Patrick J. Buchanan’s new book, The Death of The West (St. Martin’s Press, 2001, 308 pages), for which Bruce Ramsey provides a whimsical review “Go Forth and Multiply” in the March 2002 Liberty. “The book is an attack on cultural leftism among whites, which he largely blames for for their selfish unwillingness to breed.”  At one point Buchanan writes, “Only the mass reconversion of Western women to the idea that they seem to have given up – that the good life lies in bearing and raising children and sending them I out into the world to continue the family and nation – can prevent the death of the West.”  The “population arguments” are used against homosexuals. “Buchanan suggests a $3000-per-child tax credit and repeal of the discrimination laws so that employers can ‘pay’ parent (read: fathers) a family wage and mothers can stay home. Even as he offers this answer, he senses how lame it is. American business is not going to pay bonuses based on how many kids its employees have. And welfare states of Europe already have cash subsidies for children, and their birth rates are lower than ours.”

143 William Tucker, "A Return to the Family Wage," The Weekly Standard, May 13, 1996, pp 27-31.

143a Congress is, in 2003, considering an addendum to the Family and Medical Leave Act (FMLA) called the Family Time Flexibility Act with an optional program for employers to give employees to choose between overtime compensation in pay or in other paid time off. See the article “’Mommy wage gap: It’s real, but is it fair’” by H.J. Cummins in the Minneapolis Star Tribune, May 11, 2003. The article maintains that in 2003 childless women and men were near the same rate of pay.

143b  California, as of 2004, requires employers to offer up to six weeks family leave with half pay—which is becoming stressful for smaller employers. The law was passed in September 2002 (the California Family Rights Act). Here is a web reference:  The leave compensation is supposed to funded by employer contributions to an SDI (state disability insurance fund. The states own website for the act is  This was covered by CNN on July 31, 2004.

143c. On July 5, 2006 ABC “World News Tonight” ran a story about family responsibility discrimination lawsuits against employers. One female employee of a law firm was fired after having a baby, and another male auto salesman was “laid off” after his employer learned that his own father had a critical illness, requiring time off work. ABC news has a brief link list on this problem at (  look at “hot topics”). Of course there will be calls to strengthen the Family and Medical Leave Act.  The ABC report indicated that juries are often sympathetic to plaintiffs in these suits. A counter observation will be that many jobs are temporary or contract and allow no benefits at all, and that “singletons” would have to do more the family heads’ work for the same pay if family leave were strengthened. This is another variation of the “equal rights” and “special rights” problems, but also begs the broader moral question about how family responsibility should be shared in our society even by those without their own children. See also the book review of Elinor Burkett, The Baby Boon.

144 For varying views of this workplace imbalance, see "Balancing Work and Family," Business Week, Sept. 16, 1996, p. 74, and "Parental Perks," The Wall Street Journal, March 26, 1997, and Betsy Morris, "Is Your Family Wrecking Your Career (and vice versa)," Fortune, March 17, 1997. On April 2, 1997, ABC "Good Morning America" ran a debate over the claim that employer perks for parents would come out of the pockets of non-parents. Opposing views were presented by the Families and Work Institute and the Child-Free Network. Surveys have found most childless workers do not mind pitching in to help co-workers with children or other dependents, although questionnaire respondents may have felt pressured.

Some critics maintain that many parents don't take advantage of the family privileges employers offer, because of subtle fears of discrimination, or perhaps because many adults feel more comfortable at work (around other adults) than in psychologically intimate situations with their children. See Brownlee and Miller, op. cit., and Laura Shapiro, "The Myth of Quality Time," Newsweek, May 12, 1997.

There is also an American Association for Single People (AASP), which advocates access to domestic partner benefits for all domestic relationships, regardless of whether there is a sexual relationship! Again, public policy penalizes those who don't have "real" sex!

On Nov. 12, 1997, USA Today carried a story "Childless Workers Claim They Have Lives, Too" and reported that 2/3 of all workers do not have children. Nevertheless, government statistics demand respect for those who parent; the Dept. of Agriculture reports that it costs $108,000 to raise one child to age 18 (not including college tuition) in a middle class family.

Brian McNaught (op. cit, note 61) says on page 48, "when the boss asks Marilyn, because she's 'single' to cover the office during the holiday so that the rest of the employees can be with their families, that too is heterosexsm."

On March 24, 2000, ABC “20-20” and John Stossel aired a segment, “Cheating the Childless,” to explore the “hidden” subsidies apparently given to people with children in the workplace. Stossel presented author Elinor Burkett with her book, Baby Boon, and a sitcom segment on the Drew Carey show. About 1/3 of workers have children. Childless workers complained of being expected to work more overtime or holidays, sometimes without pay. Working at home and on-site child care were presented as options, and these do not seem to hurt productivity. In some companies, cafeteria plans can offer childless employees other choices of “perks.”  The “moral” question as to whether society should prefer parents “collectively” was touched upon lightly: is “replicating yourself” really a choice that others are subsidizing?

On May 15, 2005, Cheryl Dahle has an article in The New York Times, “Office Space: Career Couch: The Childless Need Weekends, Too” which suggests that childless workers learn to say “No” to unreasonable requests for free overtime (to benefit workers with families), and map out their own personal plans in advance with bosses and coworkers.  Link is  (need a NYT subscription, cost is $2.95 per article to NYT). In my last two years at ING (2000, 2001) I several times took “nightcall” on holiday weekends, and indeed I took it Thanksgiving weekened 2001, just three weeks before my layoff on 12/13/2001. 

On March 29, 2000 the Minneapolis Star Tribune, in a story “New Parents could get paid to stay home,” by Jean Hopfensperger, reported that the Minnesota house has proposed a “voluntary” paid parental leave program for parents that would provide up to 26 weeks of 2/3 of an employee’s salary, with the state paying half of that. The state maintains that taxpayers would get some of the money back with reduced welfare costs.  

A 2001 Canadian study (by Jay Belsky, of the University of London)  reports that children with high day care time are more likely to behave aggressively.  This sounds like another argument for paid parental leave, a concept that the media picked up on in April 2001.  Many European countries use government subsidies to provide paid parental leave (mothers or fathers), with Sweden the most generous.  Does this tax the childless?  Definitely.  It would not do so as much if subsidies are offered for eldercare (tax cuts have been proposed in the U.S. but not subsidies).  It does not appear that the EU is yet subsidizing leave for eldercare in any manner comparable to leave for childcare.  But one can imagine the social balance if society were to turn in such a direction that unmarried offspring were “drafted” to provide physical custodial care for their own parent or other aging people in an exchange—an idea that could become plausible as the extreme shortage in labor for custodial care and nursing homes worsens. (see note 196). See also John Rosemond, “Common sense says day-care study valid,” who comments about the intellectual dishonesty of Belsky’s critics who complain about his publishing an honest study that “hurts the feelings” of working parents who do not believe that they have alternatives to day care (Knight Ridder, May 28, 2001).

144a.  KSTP, on August 29 2002, presented a story about a few employers (not named here) in the Twin Cities being sued for not allowing employees to take leave (apparently family leave or even sick leave) for sick children. When the “childless” argument was presented, a spokesperson for the Minnesota Attorney General answered that childless employees could “take their turns” taking care of elderly parents, as if there were an unwritten public policy that is automatically expected. (Contractors and W2 employees do not have sick leave or paid-time off. I believe that employers are legally expected to make a reasonable accommodation to allow them to use unpaid leave to care for ailing children or parents.)

144b  On Monday. Feb. 4 2004 television station NBC4 in Washington, DC will present a report (at 11 PM EST), “How society treats singles as second-class citizens.”  This report will include issues in the workplace (time-off policies, unpaid overtime, sometimes the expectation that people without families will take the holiday shifts, and tax policies) and with consumers (as with travel packages). Of course, this debate connects to other debates about low birth rates and same-sex marriage. It is problems like this that make same-sex marriage have importance as an issue even to the single. Also see the review of Elinor Burkett’s book. In the last ten years of my I.T. career, I sometimes did more of my share of the nightcalls (taking many holiday weekends during the last two years of 2000 and 2001, even the Thanksgiving weekend a few weeks before my layoff announcement!) Workplace “heterosexism” matters more in salaried environments (where overtime is uncompensated) than with hourly workers (unless we get into illegal off-the-clock work demands).

According to Shannon Bream’s report, there are 86 million singles in the United States (40% of voters), but they are treated by some employers as if they don’t have “lives” of their own and may be asked indeed to do more traveling, work more unusual hours or even unpaid overtime when salaried, and may not be able to keep personal social commitments. The problem may be more severe with jobs that are less technical in nature. There is an organization called “Learning Escapes.” Of course, discrimination in travel or restaurants (couples rates or 2 for 1) is well known, but sometimes offset by offering for domestic partners or same sex couples. Would a state like Virginia make these offerings illegal when they are at the discretion of a private business?

144c  In the first week of March 2006 ABC “Good Morning America” visited the families v. childless workplace debate. Tory Johnson, “Is It Fair to Cater Soley to Enployees with Kids,”

145 The Fair Labor Standards Act says little about "salaried" or exempt workers. The important distinction is that "exempt" workers are paid a fix amount per pay period, regardless of hours actually worked (especially at home or in the office) with the ownership of a specific job responsibility. Generally, an employer may legally require whatever time and effort it takes to achieve previously negotiated job objectives. (With a contractors, the employer may not have to pay until the objectives are actually delivered.) If one associate is ill, another cannot suddenly be required to work the ill person's time without compensation. An associate can have a contingent responsibility to guarantee, say, the availability of an information system when others are unable or unavailable. Family matters can be treated preferentially compared to other outside interests. Therefore, the "exempt" concept actually mitigates against legal remedies intended to force employers to treat all associates absolutely equally. This certainly ties back to the "family wage" issue just mentioned. There is some legal controversy over whether exempt employees may legally be paid "overtime" (outside of bonuses) or given "comp time." Relatively few benefits are actually required by law for salaried or hourly workers (these are social security insurance, unemployment insurance, workers' compensation, and [family] leave without pay; health care, vacation, holidays, sick leave, pension or 401K, etc. are often demanded by market forces or union contracts; there is recent controversy of conversion or "capping" of (defined benefit) pension plans to portable employee-managed 401K's and retirement accounts, which appeal to job-hopping younger workers. ). Of course, there are other compensation techniques, mentioned elsewhere, that complicate the discussion: piece-work, job-sharing, temping. (Another issue is that our entire retirement system is harder on women, or for that matter men, who have spent a lot of their careers in the "home.")

Steven Kahn, Barbara Brown, Brent Zepke, and Michael Lanzeron, Personnel Director's Legal Guide, 1993 Cumulative Supplement (Boston: WGL, 1993), p. S-15.6, presents an interesting case, Bright v. Houston Northwest Medical Center, where, in 1982, a hospital technician was placed on 365-day, 24-hour beeper call with a 20-minute response, without specific compensation. An en banc appeals court agreed that he need not be compensated because he had been able to use his on-call time for his own use, even though the on-call requirement had severely curtailed his personal life. Very recently, more progressive employers have sometimes brought back the emphasis on a disciplined, productive eight-hour day (no coffee at the desks) with the overtime and on-call left to indirectly rewarded "volunteers ."

Computer programmers (applications and systems) give me varied reports on how their companies enforce on-call responsibilities. Some banks actually deduct pay when a programmer fails to respond and a backup is called. So programmers, although used to psychological, expressive freedom of introversion, may sometimes find themselves grounded, almost as if in the military. Some companies are reluctant to spell rules concerning off-duty obligations out in advance, because associates may enjoy more freedom in practice if employers are free to handle inequities among associates on a case-by-case basis. The military, by contrast, must spell out rules for every conceivable situation.

I think that a fair way to handle this is to make on-call a “contractural” obligation when appropriate in a salaried environment (with the person’s response a performance appraisal metric) but to reduce the work-week accordingly (like from 40 to 36 hours) and to limit the percentage of weeks a person is on-call to a reasonable fraction. People without dependents at home could be expected to do more of it.   

Another good reference on the Nightcall issue is Janet Lehrman Ruhl, A Programmer's Survival Guide: Career Strategies for Computer Professionals (Yourdon Press, 1988).

145a Ch. 5 P 269, fn 145. In fact, it may be appropriate for employers (or their health insurers and HMO's) to require associates with 24-hour on call contingent duties to demonstrate medical fitness for such responsibilities. One situation that mitigates the demands on exempt associates is short-term disability income, which is generally subrogated by insurance policies rather than covered by operating personnel budgets.

145b for Department of Labor's own account of the rules, see:

But the federal government has gotten clumsily involved in catagorizing workers (salaried-exempt, hourly, contractor) and in the relative equity with which they may be compensated.

For the problem of extreme overtime by hospital interns and residents, see Robert Pear, “Interns’ Long Workdays Prompt First Crackdown: Medical Training Group Is Enforcing Rules,” The New York Times, June 11, 2000, Page A20. 

145c Ch 5 P 270 pr. 1 : (D)Other sole breadwinners really do offer their employers a lot of free overtime to enhance their reliability as providers, at the obvious cost of time at home. For further discussion of the politics of the workplace, there is surprising candor about (progressive) practices at Microsoft in Steve McConnell, Rapid Development: Taming Wild Software Schedules (Seattle: Microsoft Press, 1996). For example, "voluntary" overtime should come from the employee's own values, not from employer demands. Customers who demand "free" overtime are not following the ethics rules of "rapid development." Another good discussion of workplace values in information systems is provided by Ralph Sprague and Barbara McNurlin, Information Systems Management in Practice (New Jersey: Prentice-Hall, 1993), Chapter 18, "Managing the Human Side of Systems." Both of these books provide discussion of what makes different kinds of professionals "tick" based on personal values and even personal "identity." For example, programmers often do not require the social ratification of others for their work. On May 28, 1997 The Wall Street Journal carried a front-page story about excessive overtime in the workplace (especially in law firms) and the complaints that the personal lives of single people are sometimes not respected.

145d Ch. 5 P. 270 pr. 4: On "leave banking." This is practiced by the federal government, some other governments, and some large employers. But it is usually practiced as an "insurance policy," not as forced altruism. A federal civil service employee may donate 8 hours of annual leave per year to a pool from which any participating employee may draw to earn "paid" family leave. See also fn 68.

145e: Even union employees sometimes have to work some "free" time, depending upon their bargaining position. For example, flight attendants are often not paid except for time that the airplane is moving, despite being required to report in uniform an hour before the flight (with no pay for that time). This "work rules" dispute contributed to the rejection of a contract offer by Northwest Airlines in 1999. Curiously, Terri Chaffer (from the union) commented that these work rules "might mean nothing to the general public." For argumentation, they mean everything! (See story in Minneapolis Star Tribune, Aug 28, 1999, p. D1).

145f: A few "liberal" lawyers have tried to maintain that Romer would invalidate Calif. Prop 209, since 209 seems to allow (by exception) government to offer preferences to some groups but not to others; but then this differential must be based on 'animus" to be struck down under current law.

145g: A practice becoming more common with employers is that employees waive their rights to sue (“release of all claims”) and settle disputes with mandatory dispute resolution agreements, which require secret administrative (non-judicial) settlements of employment-related claims out of court. Kate Andrias, “Locked Out: What do Circuit City, Waffle House, and Labor Ready have in common? The companies all force employees to sign away their rights to go to court.” Legal Affairs, May/June 2004.

146 Meredith Bagby, Annual Report on the United States of America, 1996 (New York: Harper Business, 1996), p. 5. Ross Perot often mentions this book.

147 President Clinton, op. cit., p. 97.

147a  Ch 5 P 271, pr. 4: In fact, my first employer paid married men more per diem than it did to single men even though wives usually did not accompany the married men. In those days, discrimination happened because people with different "lifestyles" supposedly had different levels of cultural responsibility.

148 Daniel Baker, Sean Strub, Bill Henning, Cracking the Corporate Closet (New York: Harper Business, 1995), p. 108.

149 Presumably, such a clause prohibits behavior that ordinary understanding interprets as homosexual interest; it follows the military's example of defining statements as "conduct."    (referring to DeMuth v. Miller, PA, in the book text).

Here is an interesting employment law handout at the University of Pittsburgh on the DeMuth case: here.  Another one on gaylaw is here. Also these Lesbian/Gay law notes here.

149a.  Of course, as the Internet bubble burst in the latter part of 2000, into recession in 2001, conflict of interest came to be understood publicly as related to financial analysts – often certified as professionals—working for investment banks that have interests in the firms that the analysts report on. In late 2001, with Enron  (a genuine tragedy for shareholders and employees) we would see the problem of accounting firms auditing the same firms that they consult for.  Even the IPO and venture capital processes with dot-coms seemed to involve favored treatment (“preferential allocations”) of certain investors like hedge funds. This brings back the whole memory of insider trading, ranging from the Texas real estate swindles to junk bonds and the world of Foster Winans’s book Trading Secrets.  It does seem that the type-A personalities in investment banks have a particularly tunneled focus on money and short-term margins for their own sakes. But even outside writing becomes an issue, as a few times employees have tried to manipulate stocks of companies that they work for or of competitors with their own web sites (and as ethical controversies have developed over journalists who moonlight). So “conflict of interest” can become a slippery slope, and the writer has to weigh discussing issues against discussing specific companies or entities. . See the PBS Frontline show “Dot Con” of January 24, 2002. The show suggested replacing “preferential allocations” in the IPO process with public Internet auctions (Ebay-style).

“Conflict of interest” policies often preclude trading or other activities of “immediate family members.”  It will be interesting to see how non-legally married domestic partners (especially same-sex partners) are handled in “conflict of interest” situations.  Generally, domestic partners are regarded as “immediate family” for this purpose if their finances are co-mingled.

There are several federal statutes dealing with conflict of interest among federal employees. The best source may be “Federal criminal conflict of interest (Fourteenth Survey of White Collar Crime)” by Suzette Richards and Robert Warren Topp, from the American Criminal Law Review, Summer 1999, vol 36, i3, p. 629 (no URL available to me). 

Stephen Fishman, on p. 14/8 of Web and Software Development: A Legal Guide, proposes a standard employment Conflict of Interest clause that would prohibit not only “any business activity competitive with the Company’s business activities” but also any other activities (not necessarily commercial) that conflict with the Company’s best interests.” Presumably such a clause could include public criticism of the company, it’s industry or major identifiable stakeholders. (It could not include legitimate whistleblowing.) 

149b  Employees can be held criminally liable for violations of law (such as not carding minors and selling tobacco (under 18) or liquor (under 21) or illegal telemarketing), even though they are low-paid and even if they were not properly supervised. Sometimes managerial or editorial employees can be held criminally and civily liable for copyright violations in which they knowingly participate as employees. Of course, employees in financial or auditing companies can be held liable for violations of law, as well documented with Enron and WorldCom. Federal whistleblower laws and public policy rulings by judges are supposed to protect employees who report legal or ethics violations in good faith.

149c  Interesting questions arise with state unemployment claims, when someone owns a business not yet producing income but putatively interfering with a conventional job searches as generally required by states as “public policy.”  

150 In most states, employers probably cannot legally spy on employees' private lives or strictly personal associations. Some companies have dismissed workers for (sexual) fraternization, and the resulting lawsuits for invasion of privacy have met mixed results in court. See Repa, p. 6/43, and Ellen Alderman and Caroline Kennedy, The Right to Privacy (New York: Knopf, 1995), pp. 277-320.

150a.  However, in 1998 Alicia Pedreira was fired by the Kentucky Baptist Home for Children for a public display of affection (off work) with her lover, with the T-shirt “Lesbos.”  Apparently the Home maintains that such public “conduct” reflects poorly on the religious values of the home. This wound up in court since the Home takes state money, but a federal judge dismissed the lawsuit in July 2001, on the theory that civil rights laws don’t protect “lifestyles,” even when it comes to employers using public money.  See also note 158a 

151 James Stewart, "Gentlemen's Agreement," The New Yorker, June 13, 1994, p. 74.

152 Ibid.

153 Ellen Alderman and Caroline Kennedy, op. cit., pp. 270-285.

154 Daniel Mullen, "High Court Dismisses Lawyer's Claim of Bias," Ohio Gay People's Chronicle, March 22, 1996.

155 Frank Buttino, A Special Agent: Gay and Inside the FBI (New York: William Morrow, 1993).

156 For more detailed discussion of gays in law enforcement, see Robin A. Buhrke, A Matter of Justice (New York: Routledge, 1996). Buhrke gives harrowing accounts of gay police officers being harassed, outed, and fired, and of the fear of gays in the criminal justice system of being "found out." The cases certainly remind one of the military ban. A lesbian applicant for a position in the Dallas Police Department finally won a court case in 1993 (Alderman/and Kennedy. op. cit.).

157 Gov. Ronald Reagan had opposed this Briggs initiative on the grounds that students could retaliate against teachers with false accusations of homosexuality after getting bad grades.

157a A California school district, at the end of 1999, is trying to discharge a trans-gender teacher, even before a sex change operation (from he, David Warfiled, to she, Dana Lee Rivers).

157b In 1997, another teacher in Utah was forced to sign an agreement ("gag order") that she would not discuss her sexual orientation with students! Apparently this included public statements made "off the job." The military "don't tell" gets replicated again!

157b1  In 1978 Oklahoma passed a law requiring school boards to dismiss teachers who engaged in public homosexual conduct or encouraged homosexual conduct within sight of students. (Imagine a law like that applied to the Internet.) The case became Board of Education v. National Gay Task Force (1985); A federal judge upheld it; the Fifth Circuit overturned it, but the Supreme Court let it stand without comment.  William N. Eskridge, Jr. Dishonorable Passions: Sodomy Laws in America, 1861-2003. New York, Viking. 2003, p. 226.

157b2  In 1977, Dallas superintendent of schools Nolan Estes announced that any identified homosexual would be asked to resign, regardless of any improper conduct. That would seem to suggest that merely being seen in a gay bar could lead to resignation. I arrived in Dallas TX in 1979 and never heard this story. Eskridge, op. cit. p. 306. 

157c In April 2003, the Utah Supreme Court ruled that parents could not sue to remove a kindergarten teacher (Wendy Weaver [aka Wendy Chandler]) just because of her sexual orientation or personal advocacy of her beliefs. From Paul Cates of the ACLU:

Stephen Clark, cooperating attorney for the ACLU of Utah, argued that what is at stake in this case is whether plaintiffs and others who share their views about homosexuality should be able to use the heavy hand of the law, with its criminal and civil sanctions, to punish what they maintain is a moral and spiritual failure.  "Questions about the proper role of the courts often arise at the intersection of ideological or cultural struggle and law.  In this case, the Utah Supreme Court concluded that the courts couldn't properly address and resolve what is essentially an ideological and cultural debate."”

157d  The New York Times, reported on June 11, 2000, p. A30, that a first grade teacher, David Gaita, told his class at a Newton, Mass. grade school his sexual orientation after students “asked” him about his own family life.  The possibility that students may want to know a teacher’s family circumstances would seem to undermine claims that “telling” is proselytizing, when heterosexuals freely discuss their family lives because these lives are perceived as “normal.”

157e  One of the gay men to marry (his lover in a same-sex ceremony) in San Francisco in early 2004 after mayor Gavin Newsome authorized the marriages was seventh grade social studies teacher Ron Fanelle from Monte Vista school in Pleasant Valley CA. (“Pleasantville”?)  A week or so later, a student “asked” him in class, and he “told” about the same-sex marriage. The class was supportive. But one parent complained and demanded that his son be removed from the class, and the school board was to hold hearings in early April 2004. Fanelle claimed he was outed in the school by happenstance (or other students). CNN presented this story on “CNN Live Sunday” on March 28, 2004 and billed the story as “don’t ask don’t tell” for teachers. More about same-sex marriage at

157f  I have some special concerns connected to “No Child Left Behind” (particularly custodial care for retarded students in certain special education programs). Visit and point 9.

157g  South Carolina Republican Senate candidate James DeMint advocated a “don’t ask don’t tell” policy for teachers in a debate on Sunday, Oct. 3.  Inez Tenenbaum, said government should not endorse homosexuality and “folks teaching in school need to represent our values,” the State reported. Tenenbaum, who is the state’s education superintendent, called DeMint’s stance “un-American,” according to the State. After the debate, DeMint said he would not require teachers to openly state they are gay, but he said if they were “openly gay, I do not think that they should be teaching at public schools,” the State reported.”

157h  There are many old cases for teachers. One of the most famous is Gaylord v. Tacoma School District No. 10, when back in 1972 the Washington state supreme court upheld the dismissal of a teacher who had been outed to the principal by a student. A “known homosexual” was seen as a disruptive influence on students despite the fact that the Washington state sodomy law had been repealed. However in 1969, in California, in Morrison v. State Board of Education, the state supreme court had held that a teacher could not be dismissed unless he was shown specifically as unfit to teach. Here is a reference:  In 1972, Jack Baker was refused a job at the University of Minnesota library because of his gay “activism” (attempted “gay marriage”). Today this would be seen as a First Amendment case.

157i.  Here are some web references regarding the First Amendment rights of teachers, on and off duty:  (Pickering-Connick test – important)

I would be concerned about possible (legal) consequences if a teacher is involved in off-duty pornography, or if Internet postings of a teacher were construed as an indirect solicitation from underage students. See note 174b about a case with a guidance counselor in Arizona.

157j. Here is another good paper, from the American Bar Association: 

157k  Here is a blog entry based on a March 10, 2007 ABC “Good Morning America” spot on concerns raised about teachers who attempt or have sexual contact with minor students (in this report, it was female teachers and male students in New York), and this can definitely lead to a witchhunt mentality for everyone, affecting speech and privacy.

158 Congressional Digest, Nov. 1996, p. 276. But now the Bay Area Chapter has a "Don't Ask Don't Tell" policy! The British chapter of Boy Scouts actually did lift the ban on gay scouts in early 1997. The Girl Scouts (in this country) have no such "ban," possibly a reflection of the fact that lesbianism is less threatening to women than male homosexuality is to many men, with their burden of "initiative." There is some controversy over whether the Rhode Island Boy Scouts have really adopted a "don't ask, don't tell" policy.

158a. In James Dale v. Boys Scouts of America, and Monmouth Council, Boy Scouts of America, the New Jersey state supreme court has held that the Boy Scouts' policy is illegal because of the state law against discrimination in public accommodations. See excerpts from the opinion. The court held that the BSA, since it was otherwise very inclusive, amounted to being a public accommodation even if it was essentially non-commercial. (The court did not find the BSA's intellectual property to be focused on "morally straight" as "sexually straight, or that it seemed explicitly preoccupied with a fungibility paradigm morally appropriate masculinity. Many scholars, however, feel that the BSA, to the extent that it is totally private, discussed below, has a genuine "expressive association" claim in the way it presents its "moral values" and that BSA can reasonably claim that its expressive purpose reasonably implies the exclusion of gays. Furthermore, some scholars feel that even under New Jersey law, the BSA, as a non-commercial membership organization, may not really be a place of public accomodation.) Libertarians are properly concerned about the BSA's variable (according to locality) dependence on public resources (such as free meeting space in public property and a 1916 charter from Congress), even if private organizations should (according to First Amendment freedom of association) be able to choose or exclude whom they want. The court reinforced this concern by arguing that BSA's publicly funded support contributes to the finding of it as a public accomodation If a group like BSA depends upon public funding in a substantial or unusual way, then it should not be able to discriminate. Of course, the BSA follows the example set by the military. (More recently, the BSA has announced it would review whether its definition of "morally straight" categorically excludes all homosexuals.) Note that in an earlier California state supreme court decision, the BSA was allowed to keep its policy despite the support of the San Diego police department. See  

In 2000, Gays and Lesbians for Individual Liberty submitted a friend-of-the-court brief to the Supreme Court arguing that the government did not have the right to tell a private organization whom it chooses or keeps as members or leaders, and that gays eventually could be hurt if the government were to limit private speech, especially with respect to freedom of expressive association (as with gay bars, homes or centers for gay youth—like District 202 in Minneapolis , etc). The Supreme Court sided with the Boy Scouts in a 5-4 decision in June 2000. See 

158b  The ACLU and the Americans United for Separation of Church and State have sued the state of Kentucky and the Kentucky Baptist Home for Children, as a partially publicly funded employer ($13 million of its $19 million budget in 1999) for firing at least one lesbian employee and adopting a written policy denying employment to people known to be homosexual. The ACLU points out that Congress has actually directed funds to religious groups and yet authorized these groups to discriminate on the basis of religious tenets.    

158c  On Nov 21, 2002 CNN Talkback presented a discussion of the controversy over the “ban” by Big Brothers of gay big brothers. Nevertheless, I new one in GANNJ in New Jersey in the 1970s.

159 Peter Fisher, The Gay Mystique: The Myth and Reality of Male Homosexuality (New York: Stein and Day, 1972), pp 147-152. Fisher gives a harrowing account of discrimination in the old days: private-eye investigations, questions as to lack of a spouse, requirements that gay cabbies get notes from psychiatrists.

160 Alwood, op. cit., p. 120.

160a Ch 5 Page 274, after pr. 2. There have been reports of dismissals of gay officers by the Connecticut State Police even though Conn. has no sodomy law. There have been a few cases, even in the 1990's, where insurance companies or agencies have fired salesmen for apparent homosexuality. In 1997, a charity agency actually refused to hire men not capable as serving in the Boy Scouts! Whether the Scouts are completely "private" is clouded by the fact that in many communities they do receive, at least indirectly, public and United Way funds.

160b Rev. Mike Piazza of the Cathedral of Hope (Metropolitan Community Church of Dallas) reports that his services are broadcast on 38 stations in north Texas. Between 1996 and 1998, six choir members have been fired from their jobs for appearing on televised broadcasts that apparently led employers to "presume" their homosexuality. In 1981, a consultant where I worked exclaimed to me that he was watching a broadcast of Dallas Pride March and that when the TV lens zoomed in, it was me!

Ch. 5 P 274, pr 5: See George Will, "Can't Get the Government Out of Their Hair: When braiding becomes an 'unlicensed activity,'" The Washington Post, Aug. 3, 1997.

Ch. 5 P. 276 pr. 3 Indeed. Nickles and Ashcroft wrote that gays should not be allowed in certain sensitive civilian jobs.

 161 ACLU, The Rights of Gay People (New York: Bantam, 1983 and 1992).

162 Lou Chibbaro and Lisa Keen, "Clinton Lends His Support to Employment Bill," The Washington Blade, Apr. 25, 1997. In the September 24, 1999 Blade, Lisa Keen offered the perspective that Supreme Court rulings limiting federal power with respect to the states may make federal ENDA legislation more difficult to pass an to sustain; she voiced a similar concern with attempts to strengthen the ADA.

162a.  On June 23, 2000 President Clinton issued an Executive Order including protection from sexual orientation discrimination in access to federal funds for educational purposes.  The reference with the text of the order is:

162b.  A federal judge in New Jersey has ruled that the Civil Rights Act of 1964 does apply to discrimination involving “failure” to conform to gender “stereotypes.”  See

162c.  In April 2002 a Senate committee recommended a full Senate vote on ENDA. See

Also at about this time the Dallas City Council passed a bill prohibiting sexual orientation discrimination in most areas.

162d   One interesting sidebar of the WorldComm mess in 2002 is that this company often required employees to double up in hotel rooms on business trips. Well, lumberjacks used to share common bunkhouses at one time, as did CCC workers in the 1930s. 

162e  Occurrences of “Cracker Barrel” discrimination still sometimes occur. Kevin Naff, managing editor of The Washington Blade, reports that he was harassed by his boss at a Fortune 500 company in a Washington DC suburb in 2001 shortly after the 9/11/2001 attacks when his boss concurred with Jerry Falwell’s absurb public statements blaming gays (and women who have abortions) for attracting the attacks from Al Qaeda. Now, no responsible conservative journalist would concur with this, as the causes of Al Qaeda wrath include American foreign policy and subsume all of American “secular” culture (gays are just one part). Naff writes that he was repeatedly harassed and essentially run out of the company, which he quit after a few months of unsuccessful pursuit of complaints with HR. He does not mention the company in the July 30 Blade piece and does not appear to have a secret out-of-court settlement (for “hostile workplace”).  It would be helpful to readers to know the name of the company (unless he really intends further litigation against the employer.)  Personally, I find it hard to believe that this story would be representative of larger companies today. In fact, most mainstream companies go out of their way to make their hiring practices look as objective and numbers-driven as possible, with the emphasis on personality or adaptive screening tests and exact matching of position descriptions to applicants’ skills.  The story is at

 Naff uses his experience as an argument for ENDA as a practical necessity, buy I would cast this story as an argument the eventual achievement of gay marriage and of the right to serve openly in the military—equal rights implies equal responsibilities implies equal rights!

For an analysis of the controversy at HRC over including trans-gender in ENDA see Chris Crain’s Aug 13 editorial:

163 OH/RS, "Gay Leader Praises a Senate Vote on Employment Non-Discrimination Act and Rejects Attempts to Expand Government Intrusions," Gays and Lesbians for Individual Liberty, Press Release, Sept. 10, 1996.  GLIL had condemned DOMA in an earlier press release in July, 1996. (See also note 158a, on GLIL and the James Dale case in 2000.) See

When I first saw the text of this GLIL press release (in 1996), I felt that it was a bit abrasive and inconsiderate. Why praise refusing to extend the power of Government to prevent discrimination? Yet ten years later, it makes a lot more sense. For government to extend powers to protect people selectively, preferentially or deferentially to some perceived needs of the population will tend to drive the population further into second class status if government still continues to discriminate in areas where persons can be of public service and "pay their dues." The Press Release (sent by email) also criticized the Senate vote about that time advancing DOMA (the Defense of Marriage Act) which would ironically turn out to matter years later.

In 2004-2005, I was an unlicensed substitute teacher in the Arlington and Fairfax county school systems in Virginia. I often found that lower income students (particularly minorities) did not respect me so that I sometimes had serious problems maintaining discipline, and eventually resigned. These kinds of students sensed that I did not share their burdens or street smarts experiences so they did not feel that they had to respect me. They suspected that I am gay and that I have never been a parent myself. True, and that added to the discipline problems. Would an ENDA like law for teachers really have helped me? Of course, in public schools we can argue (as with other footnotes on this pages, such as the note about the Briggs initiative in CA in 1978) that government owned systems should not discriminate. They should not. But in the military and with marriage and adoption laws government discriminates. So legally, I am a second class citizen. Even with ENDA giving only "partial" equality (a sort of sometimes separate and sometimes equal), I could not be a credible authority figure so the job was just no good. I thought that the idea of "don't ask don't tell" would work for the military in 1993, particularly for young recruits wanting their educations paid for. But for older people who have lives to relect upon and who need to be respected, it just doesn't work. Only full political equality works.

All of this happened when the public needs more math teachers (particularly retired from other areas), just like it needs more military recruits.But you can't do public service credibly as a second class citizen, at the beckon and call of the whines of others.

As if all if this were not ironical enough, Gov. Warner of Virginia extended sexual orientation discrimination protection to state agency employees as his term expired. The new governor Kaine has continued it. But more controversial is a bill in the Virginia General Assembly banning sexual orientation discrimination with local governments and school boards. Now some assemblymen have complained that this would ban discrimination on the basis of pedophilia or beastiality (i.e., "there are eight sexual orientations"). The Washington Post ran an editorial on this matter on Feb. 8, 2006. The bill would not cover true sexual disorders (presumably pedophilia) and presumably would still allow school boards to fire teachers whom they had reason to believe posed a risk to legal minors. It would help, but it would not restore complete respect for gays in certain positions without full equal rights including marriage. So when is compromise equivalent to hypocrisy?

163a  During the early part of 2003, some communities and states have reacted to war threats and worsening economies by wanting to reverse gay anti-discrimination laws, particularly in Washington and Minnesota.  In Minnesota, the legislature proposed to eliminate non-married domestic partner benefits (to save money) and then to undo state anti-discrimination laws on the theory (expressed by the new governor Pawlenty) that gays should not be viewed as a “protected class.” But of course ENDA (and similar state laws) would not require disparate impact analysis and is not legally predicated on a “suspect class” concept. The whole backlash seems related to economic hardship and the right-wing notion that society cannot afford the narcissistic indulgence of homosexuality during hard times. (Note: I am told that MN human rights law does invoke the concept of suspect class for gays, but if so this is not the right way to enact this kind of legislation.)

On April 4, 2003 the Minnesota legislature repealed its short-lived same-sex domestic partnership benefits for partners of state employees, effective June 30, 2003, after (unsubstantiated) right wing claims that gays would overuse health care benefits for their partners, especially for psychiatric and domestic abuse claims, at taxpayer expense.

163b  Stephen Barr provides a story in The Washington Post, Feb. 18, 2004, “Gay Rights Information Taken Off Site” in which a recently appointed Republican head, Scott J. Bloch, of the Office of Special Counsel removed references to sexual orientation from a discrimination complaint form. Mr. Bloch claims that Congress does not authorize protection of civil service workers from sexual orientation discrimination. However, in 1973 the Civil Service Commission had stated that an agency could not declare a person unsuitable for employment on the basis of homosexual orientation or activity (when off the job and unrelated to job performance); in 1983 (under the Reagan administration) the Justice Department held that civilian employees even in law enforcement could not be removed for consensual homosexual activity, and in 1998 President Clinton issued an order, unrescinded by President Bush, that federal agencies not discriminate on the basis of sexual orientation; this leaves, of course, the United States Armed Forces as the guardian of this “old chestnut.” But Mr. Bloch’s conduct is disturbing. The group that defends the rights of gay federal employees is called Federal Government Gay, Lesbian and Bisexual Employees, GLOBE, which has posted a story about Mr. Bloch’s action. There are reports that an IRS manager denied a job in 2003 because of sexual orientation, and apparently Mr. Bloch removed the story about this agency news release.

On March 31, 2004 the Bush White House contradicted Bloch and issued a statement that sexual orientation discrimination was still forbidden in federal civilian jobs. See Christopher Curtis, “Bush differs with appointee on gay policy,” at

Apparently the White House announced that OSC would still continue to honor Clinton’s order. In some interpretations, and employee could have been fired for his orientation but not for specific conduct (the opposite of the military “don’t ask don’t tell” policy), although it does not make sense to classify someone by orientation and then deny that the classification legally does not exist. 

But in May 2005 Mr. Bloch told that Congress has not given him the authority to enforce non-discrimination for sexual orientation in federal employment, despite an earlier personnel statute and a Clinton administration XO. He told Carl Levin at a Senate hearing, “the courts have repeatedly rejected sexual orientation as a class protection.”

One June 30, 2005: Reps. “Henry Waxman, D-Calif., and Chris Shays, R-Conn.,introduced bipartisan legislation today that would clarify existing law to ensure full enforcement of prohibitions against anti-gay discrimination in the federal workforce.  This legislation, cosponsored by Reps. Steny Hoyer, D-Md., Barney Frank, D-Mass., Mark Foley, R-Fla., Tammy Baldwin, D-Wis., Eliot Engel, D-N.Y., Danny Davis, D-Ill., and Jim Kolbe, R-Ariz., is supported by the Human Rights Campaign, which has
been leading an effort to halt a rollback of protections in existence since the Carter administration.”  Source” Human Rights Campaign

163b  In September 2004 the administration proposed technical changes to rules regarding civil service contracts that would have limited discrimination protection to those categories provided by law. That is, gays and lesbians could not be protected as a class. Story by Paul Johnson, “Administration Moves to Remove Gay Protections from Federal Labor Contracts,”   Apparently, however, the Social Security Administration has agreed to continue to protect sexual orientation in letting out contracts.

163c  It seems that security clearance protections for civilian employees are being weakened late in the Bush administration, compared to supposedly improved protections from Clinton’s 1995 Executive Order (there had been improvements since the first Bush administration, as Franklin Kameny told radio commentator Scott Peck on a radio talk show on a Sunday night in 1993). “President Bush's updated language says security clearances cannot be denied "solely on the basis of the sexual orientation of the individual … If sexual behavior is "strictly private, consensual and discreet," that could lessen security concerns, according to the regulations that came as part of an update to clearance guidelines distributed in December.”  Katherine Shrader, “Democrats Slam Revised Gay-Clearance Rules,” Associated Press, March 15, 2006. 

164 This has already happened with a gay bar in St. Petersburg, Fla.

165 Nigel Ashford, "Equal Rights, Not Gay Rights," Political Press #109, Libertarian Alliance of England, 1995. Of course, his general ideas would apply in England, the United States, or any "free" country.

165a Ch. 5 P 278 pr 2: It is well to note that anti-discrimination laws may not be of much use to people for applying for lucrative positions overseas in Muslim or Asian countries that have much more socially conservative cultures. (At least in the past, Saudi "religious police" have frequented even civilian American worker compounds looking for contraband literature and booze).

Some municipalities do include small employers (down to one employee even) in all their civil rights ordinances, even including sexual orientation.

The practice of firing workers and then hiring them back as freelance is supposed to be difficult according to tax law, but I know it happens (National Geographic did this with indexers in the early nineties. Some changes in the Balanced Budget bill for 1997 might make it easier for employers to classify workers as contractors ¾ particularly workers well-equipped to telecommute from their home computers. But, as I have pointed out elsewhere, contractor status (particularly when one has several customers) may give one more freedom to speak out on controversial issues.

166 "ENDA, Pros and Cons," Congressional Digest, Nov., 1996.

166a Reportedly, the National Gay and Lesbian Task Force (NGLTF) has (in 1999) withdrawn support for current ENDA bills that do not protect transgendered persons! Such political correctness!

166b  The fact that ENDA would not require “disparate impact” statements apparently means that class actions lawsuits based on historical statistical anomalies and requiring reparation would not be supported.  That may work with race, but imagine the government trying to “classify” people as “gay” and “straight” and the privacy invasion issues. 

167 Chai Feldblum, brief before the Supreme Court for Romer vs. Evans, Oct. 1995, p. 8.

168 Sue Fox, "More than Half of Fortune 500 Protect Gays," The Washington Blade, July 19, 1996, p. 1. See also John Gallagher, "Out in Corporate America," Advocate, Apr. 29, 1997, p. 31.

See also, "On Wall Street, a New Push to Recruit Gay Students," by Rachel Emma Silverman, The Wall Street Journal, February 9, 2000, for more examples of "voluntary" non-discrimination and domestic partner benefits.

On June 8, 2000, the big three auto makers jointly announced offering domestic partnership benefits for couples in committed relationships for six months or more, a benefit which was held to be low in cost.

169 Associates, however, pay taxes on domestic partnership benefits (which they wouldn't pay if legally married).

170 The Family Research Council has beefed loudly about American Airlines's helpfulness to servicemembers attending court appointments in lawsuits against the military for the gay ban. [In 1997, the Southern Baptist Convention voted a non-binding boycott of all Disney companies, for both offering "spousal" benefits to gay employees and for adult films made by some of its subsidiaries. It ignored the fact that Disney is a conglomerate of autonomous companies. Should customers (particularly churches) be able to determine corporate personnel policy when government is no longer allowed to do so?]

170a Corporate mergers have been known to result in the loss of "gay-friendly" policies. In 1999, Exxon-Mobil decided to discontinue Mobil's previous domestic partner benefits policy, at least for new hires. Exxon apparently felt that it did not want to get into the business of deciding when non-legally married partners had accepted financial responsibility for one another. Exxon-Mobil also rescinded Mobil's general non-discrimination policy for sexual orientation. The first major employer to offer domestic partnership benefits and then to rescind them was Perot Systems (Source: Out, Dec. 1999, p. 112).

170b  In early 2000, a middle school student in Broward County, Florida wrote to Gays and Lesbians for Individual Liberty that the Broward County School Board had cancelled a class field trip to Orlando when it found out that gay pride was taking place the same weekend.  Government discrimination, indeed.

171 Elizabeth Birch, Human Rights Campaign, letter to The Washington Times, Sept. 4, 1996.

172 Ed Bean, "After 137 Died in its Texas Plane Crash, Delta Helped Families," The Wall Street Journal, Nov. 7, 1987. Also Daniel Baker, Sean O. Strub, and Bill Henning, Cracking the Corporate Closet (New York: Harper Business, 1995), p. 108.

173 Some HIV-negative gay men break the rules and give blood anyway, since they see their colleagues wearing "I gave blood" buttons. Screening will catch their blood, won't it?

173a Ch. 5 P 279, pr. 3. For my current suggestions on ENDA, see endarev.

 174 Almost all major private employers reserve the right to discharge "at will." The "excuse" is that employees can resign at will. Technically, employers do not even have to pay severance with either layoff or "at will" termination. Reputable employers rarely want to do this, and use the "at will" prerogative only when an associate, though not guilty of breaking any specific rules, has somehow created a situation where his presence is simply not in the employer's best interest. Of course, it's easier for an employer to replace an associate (or, usually, a customer) than for an associate to "replace" a job.

174a Ch. 5 P. 280 pr. 1. Human Rights Campaign (Summer 1999 HRC Quarterly) relates the history of Kris Marsh, who had worked for a private social services agency (in Helena, Montana) training foster parents since 1996 before being "run off" from her job in 1998. She "came out" as lesbian in a management meeting and was criticized for not "telling" before she was hired! Surely, a conservative mindset would have regarded her behavior as a kind of "conflict of interest" considering the kind of customers she usually served. Yet she apparently never sought to publicize her sexual orientation. HRC also gives the story of Mike Webb, whose public affairs show on KRWM-FM apparently aired too many reports with "gay themes," although generally TV and radio stations traditionally (as well as "legally") have a very free hand to dismiss directors and producers, especially based on ratings and audience reactions (calling in, as the case with Scott Peck in Washington DC in 1994).

In the 1960’s and earlier, one would sometimes hear of sudden corporate raids on gays (a day in 1965 when Technicolor fired all of its gays), where you wonder if they “asked”; and during those days, an openly gay person might be blackballed by whole industries, such as television networks.  

174b. More on "conflict of interest": On December 9, 1999, ABC "20-20 Downtown" aired a story about married (man and woman) nurses George and Tracey who, in their own home and with their own resources, developed a pornographic, for-pay website in which Tracey posed as "Dakota Rae." In June 1999 they were first suspended and then terminated by Scottsdale HealthCare. The Hospital claimed they had indulged in "offensive and coercive behavior" (or "sexual harassment") by inviting other employees to participate in the website or to at least view it. The Millers deny this, and emphasize that their site never mentions the hospital or their profession. Actually, in upholding this reasoning I think that they will run into problems with tricky concepts resolving around "right of publicity." Defense lawyers emphasize "employment at will" and that the plaintiffs (suing for wrongful discharge) have no constitutional right to "free speech" which could provide a distraction on the job because of publicity. There is another case in Florida where a woman working for a child counseling center was fired for posing in Internet pornography on her own time, after a customer discovered it (despite the fact that her site, too, required adult-ID or credit-card and payment, in the spirit of COPA defenses). We are bound to hear a lot more cases like this as self-publishing on the Internet grows. What is disturbing is that it would have taken the employers' customers a lot of "effort" to find these employees on the Internet (in pornography); I wonder how much happenstance was involved.

In June 2002 a Broward County Fla. Gym teacher was placed on desk duty after he appeared in a porn video and the story of his appearance was published at a MSNBC web story. The teacher claimed he was fooled into believing he was appearing in a sports commercial. (Story by Jen Christiensen, 6/23/2002).

In January 2003, Maryland corrections officer Marcie Betts was dismissed from her job at a prison near Hagerstown after security intercepted mail, intended for an inmate, containing a photo of her in Tabu Tatoo magazine. Apparently she had just started her job after finishing training, and the photos and publication of her likeness may well have occurred before her employment.  The prison contends that this development would hinder her effectiveness in disciplining inmates, or could endanger other employees. Investigation also led to a membership “adult” web site containing pictures of her, taken by her husband. Apparently the magazine photo was published without her knowledge or permission. She sued, under First Amendment claims, for her job, and apparently Administrative Law Judge D. Harrison Pratt will order her job restored. She makes the argument that she could have lost her job had the pictures have been of a hypothetical identical twin or of anyone else coincidentally bearing a strong likeness to her. The story is by Darragh Johnson, “Guard Posted—and Was Sent Packing: Fired Md. Prison Employee Sues, Claiming Rights Were Violated,” The Washington Post, Dec. 24, 2003, p. B1.

A guidance counselor at an Arizona high school was pressured to resign from her job (she had specialized in preventing dropouts) after she posed as a nude model for a magazine for older women. Apparently she did not know that she would pose nude ahead of time, and she did not authorize publication of her likeness in a pornographic magazine. She told her story to Oprah Winfrey on February 13, 2004.

Reporter Larry Oakes writes, in “Troubles cloud aquarium’s success” In the Minneapolis Star Tribune, November 26, 2000, that Great Lakes Aquarium education director Andrew Slade was forced to resign after he wrote (on his own time and resources, as an individual) an op-ed for the Duluth News Tribune criticizing Allete (and Minnesota Power) for their plans to build a power cable across northern Wisconsin, possibly seriously impacting the environment, ecosystem and wildlife. The trouble was that Allete had been a major corporate sponsor of the non-profit sponsor of the Aquarium, and the Allete CEO Ed Russell, who sits on the Aquarium Board, complained that the story mislead the public, and would reflect unfavorably on the Aquarium since Slade was known as a “public figure” in his connection to the Museum (even though the article did not mention his connection to the Museum).  Slade’s severance agreement prevents him from publicly discussing the incident.  But this story shows the increasing likelihood that people may find that their personal political views, when expressed, may in subtle and unexpected ways interfere with their official duties at work, current or prospective.

Also, Pat Doyle, in "Workers feel effects of rising competition for gambling dollars," reports in the Minneapolis Star Tribune, February 12, 2000, that the (Sioux Mdewakanton Dakota owned and operated) Mystic Lake casino near Shakopee, Mn. has implemented a no-moonlighting policy and dismissed casino (blackjack) workers for part-timing a (non tribal-owned) card clubs and even for taking classes in card dealing (after implementing a written policy banning such outside activities as a prohibited conflict of interest). 

The House of Representatives has a rule prohibiting members from accepting book advances while serving. The Senate (judging from Hilary Clinton’s book situation) does not, although it prohibits usual financial gain from outside publicity. 

It is not unusual for consulting firms to have no-moonlighting policies, largely because they want their workers available on-demand for overtime. This is simply an employer policy, not necessarily related to “conflict of interest” in the usual sense. I have heard of cases in other industries where sales or customer-relations people were forbidden to moonlight because outside activities would make employment with the company appear to be "part time."  Indeed, in an age of downsizings and expectations of worker mobility, a balance needs to be struck. 

Check notes on Chapter 5 for discussion of employees fired for comments on investor trash boards and for mention of eWatch, a service that looks for off-the-job anti-corporate activism on the web.

A TV news anchor for a station in Youngstown, Ohio was forced to resign in early 2004 when she appeared in an apparently innocent, spur-of-the-moment sunbathing pose at a spring break party in Florida, and her picture was circulated on the Internet and in sports bars in her home town. The story was on ABC “Good Morning America” on Jan. 20, 2004. Since her likeness was circulated without her permission, she might have a “right of publicity” claim. 

Baylor University (a large Southern Baptist school) in Waco, TX has (in April 2006) instituted a policy banning students (mainly female) from participating in Playboy (or similar adult magazine) ads. It is noteworthy that Muslims have objected and demonstrated, sometimes violently against a scaled-down Playboy appearing in Indonesia.

A Kentucky teacher was suspended with pay and then effectively fired after students found pornographic films that she had made eleven years before. Story (from the Dr. Phil show) is here (blogspot). She had not broken any laws. Another story on the same show involved an assistant principal defamed by a fake profile put up in her “name”.  

There was also an incident in Richmond VA where a teacher was suspended for selling artwork  produced by "butt-printing" (off his own genitals and rear end). "Teachers must set an example to students through their personal conduct" was the comment made by the Chesterfield County school district.

Miss Nevada USA was relieved of her duties in Dec 2006 after racy photos taken over her five year before (when she was 17) appeared on the Internet. A lot has been written about Donald Trump’s discipline of Miss USA in Dec 2006.

More on people who seek “fame” on the Internet at this blog entry.

A school bus driver in Georgia was fired for a gay bulletin board Internet ad in 2006,

174c. The New Orleans Times-Picayune reported on Oct 24, 2000 that Winn-Dixie had (in Jan.) fired a heterosexually married but transgendered (starting from male) employee of twenty years for cross-dressing off the job, on the theory that such off-job behavior result in publicity harming the company. The employer, Peter Oiler, is suing.

174d Employee blogging has gradually started to become a controversy. I have been concerned with this since about April 1999 (starting with a case in North Carolina where an employee of a tech firm tried to manipulate the stock price) and I posted my first White Paper in March 2000. There have been some scattered terminations, especially since 2003, of employees (“dooced”) for off-the-job blogs on their own computers, at companies including Microsoft, Google, Delta, Wells Fargo, the Houston Chronicle, and some others. See my essay on blogging ethics for details.

174e.  There has been a lot of coverage in the past five or so years about the general public objection to commercial telemarketing, state “do not call lists,” and the Federal Trade Commission’s plans for a national do-not-call list. Generally these apply only to commercial telemarketers, not to non-profit fund-raising (“telefunding”). As association of telemarketing companies is suing the FTC. This raises an interesting debate. Some people feel that telemarketers are using an unethical business model (somewhat like spammers): they can reach a large number of people with automation, and need only a small percentage of responses to be profitable, so their whole solicitation scheme is predicated on “bothering people” at home or on invading or intruding upon family privacy. On the other hand, telemarketing employs some millions of people, many of whom have few other skills (other than the soft “people skills” required to sell) and many of whom might have difficulty getting other jobs. The implication, then, is that such employees should be forced to find “real jobs” (without commissions), probably at a minimum wage. (See more in Barbara Ehrenreich’s Nickel and Dimed.) In Wisconsin, the welfare-to-work program (often for single mothers) was implemented with the help of telemarketing firms, and with commissions might be capable of paying a living wage, significantly above minimum wage.

This extends to another point. As people (like myself) get older, it is harder to keep up specialized expertise on technology and to make a good living without moving into management or sales (or both). It is easier for companies to create and budget sales jobs (even more so, “multi-level marketing” and pyramid schemes) in a down economy, because the compensation will come largely from commissions. But a person who depends upon sales of other people’s products (“hucksterism”) to make a living may be in an ethical (even legal) bind if he wants to be respected as a writer or artist, too.

174f  New Jersey governor James McGreevey announced his resignation (effective Nov 15, 2004) and his affair with another man while married with two daughters on Aug. 12, 2004. Apparently he faces a lawsuit filed by the former homeland security adviser, Golan Cipel, whom he had hired. “I am a gay American,” he said.

175g  A Chesterfield County Virginia teacher Stephen Murmur was suspended and then fired by the school board after a YouTube video of artwork made with his buttocks was discovered. He never mentioned it at school. He sued in October 2007. The AP story by Bob Lewis is “Virginia teacher fired over buttocls art sues,” here.

175 Repa, op. cit., pp. 8-51.

176 Kat Snow. "Kids: Utah's High School Students Have Galvanized the State Gay Rights Movement and Set the Stage for a National Debate," The Advocate, Issue 704, Mar., 1996, p. 24.

177 A gay doctor friend tells me that "Medicine is like the military. It's don't ask, but definitely don't tell."

178 "For rent sign says no AIDS or lesbians," Washington Blade National News, Sept. 27, 1996, p. 16; discussed by David Garland in letter "A Libertarian Analysis," Washington Blade Readers' Forum, Nov. 1, 1996 (analysis of stories in one Blade issue).

179 Dave Edmondson, "Property as a Gay Right," The Quill, Aug. 1994.

179a Ch. 5 P 281, pr. 4. Actually, there have been a few cases where women have been unlawfully fired or denied promotions for becoming pregnant and having children. In Minnesota, there was one case where a woman's supervisor actually told her she should have an abortion and that the employer might even pay for it!

 180 ABC "Prime Time Live," Nov. 27, 1996.

181 Chandler Burr, op. cit. (see Chap. 3)

182 An example of this kind of thinking occurs in the movie Sling Blade (1996), when a gay male character tells the retarded man that the two of them have something in common, oppression for a "difference" they didn't cause. Come'on, Miramax Films!

183 See Joe Sartelle's "Rejecting the Gay Brain (and choosing homosexuality)," Bad Subjects, (1994) for "moral" discussion. Also, Chandler Burr, in his followup essay "Suppose There is a Gay Gene" (The Weekly Standard, Dec. 16, 1996) offers the odd comment that moral criticism of homosexual practice is beyond debate.

184 John O'Sullivan, "After Reaganism," National Review, Apr. 21, 1997, points out that a given act of anal intercourse is more dangerous than an instance of cigarette or even marijuana smoking (not so for cocaine).

185 Tim La Haye, What You Should Know About Homosexuality (New York: Tyndale, 1980).

185a Ch 5 P 284, last para. Homophobia, as part of a larger cultural conventionality, shelters people from having to think about their own ordinariness; if provides a convenient rationalization for mediocrity.

185b  In Agust 2001 Sout Dakpta governor Bill Janklow decided to remove all Adopt-a-Highway signs in the state rather than recognize the Sioux Empire Gay and Lesbian Coalition (SEGLC).

186 Andrew Sullivan, Virtually Normal: An Argument About Homosexuality (New York: Knopf, 1995), p. 171.

186a  According to a book by Bruce Bawer, Muslim immigration has problematic to Europe, where some immigrants remain loyal to their original family structures home. Review.

187 OH, Editorial, The Quill, Gays and Lesbians for Individual Liberty, March, 1996, p. 3

188 Wolinsky and Sherrill, op. cit., p. 86. (see Chap 4)

189 In 1968, at the height of Vietnam and Johnson's "liberal" authoritarianism, Charles Socarides actually proposed that the federal government (or NIH) set up a National Center for Sexual Rehabilitation!

190 N. Penn, op. cit.: Ellen Fein and Sharon Schneider, The Rules: Time-Tested Secrets for Capturing the Heart of the Right Man (New York: Warner, 1995).

191 David Boaz, "Reviving the Inner City," Market Liberalism, edited by David Boaz and Edward Crane (Washington: The Cato Institute, 1993).

192 If, as Colin Powell suggests, companies make a practice of targeting schools with disadvantaged children for their employees to mentor as volunteers, will gay employees feel comfortable doing that and will they prefer to volunteer in their own community instead? Despite the reputation of brokerage for long hours, one Wall Street firm says it wants all of its associates to volunteer in community activities bettering young people and brings up the issue during interviews. Some people may see volunteering as a "time tax"!

193 Michael Lerner, op. cit.

194 Although Henry Aaron of the Brookings Institutes argues that Social Security's public funding is not so unsound as it appears; what bothers us is that it redistributes wealth and establishes preferences. See "The Myths of the Social Security Crisis: Behind the Privatization Push," The Washington Post, July 21, 1996, p. C1.

A more recent treatment (2005) of social security appears at  At the time of the writing of this book, there was a real philosophical question as to whether social security is to be viewed as a savings plan (the Bush view) or more as a wealth redistribution and safety net program (the FDR view), in which case “soaking the rich” on all of their incomes would make sense and bail out social security (even if you paid them benefits).

195 Brett Fromson, "Wall Street's Quiet Message: Privatize Social Security," The Washington Post, Sept. 21, 1996, p. F1. With current trends, Social Security would go broke in 2029. The trust fund will actually start showing a deficit in 2010.

195a Ch 5 P 289, fn 195. Yet President Clinton, early in 1998, proposed a new "hidden" tax on currently tax-deferred annuities. Where is the sense of personal responsibility for savings?

196 Many analysts point out that privatization would raise social security taxes, to make up for the benefits given to retirees who had never paid into the system when it started in the 1930's. The libertarian solution is to stop paying government benefits to retirees who don't need them (See Browne, op. cit., pp 159-169), or, at least, to substantially raise retirement ages. Note also, social security tends to transfer wealth from two-earner families back to one-income families with stay-at-home spouses.

There are substantive arguments for keeping social security "public." These have to do with the behavior of markets if completely open to retirement savings, and the idea that it would no longer be a safety net for the less capable or less lucky. However one cuts it, social security has a lot to do with redistribution, which is why libertarians and conservatives attack it.

Remember, social security, Medicare and Medicaid relieve people like me from the responsibility of supporting our aging parents. They don't (always) have to spend their own savings, they can leave more to us. Is that right? In Singapore, people are required to support elderly parents! There was talk in Congress, in 1994, of requiring adult children (according to marital status, perhaps??) use their resources to pay for custodial care for parents before the parents could use FFP Medicaid (when the parents had spent down their own assets). In fact, according to Barbara Silverstone and Helen Kandel Hyman, You and Your Aging Parent (Pantheon, 1989), "adult children formerly had to accept filial responsibility" (p. 217) and were held responsible for parents' custodial care bills, before Medicaid. There is still a legal issue today where some parents give away assets to children (to "spend down") and then accept Medicaid for nursing home care; this is illegal and obviously unethical.

The number of American families engaged in caring directly for elderly members has risen sharply during the last decade. See Susan Levine, "One in Four U.S. Families Cares for Aging Relatives," The Washington Post, March 24, 1997, p. A13. One study in 1999 showed that 2/3 of all personal care-givers for elderly parent made major career sacrifices to provide the care (rather than depend entirely upon nursing homes). Nursing homes are often poorly staffed and may tend to provide substandard care if they do not believe that "family" is watching them.

Also, M. Jane Taylor, "The Ties that Bind: Gays Face Special Challenges Caring for Elderly Parents," The Washington Blade, Apr. 25, 1997, p. 1. Family values also reflect the need to take care of people at dependent parts of their life cycle, and to incorporate identity and especially sexuality into this caretaking. Gay sons and daughters used to stay home to take care of parents and siblings; this got them off the hook. Some anthropologists actually argue that a "gay gene" would support collective altruism and benefit a larger extended family group as a whole (see note 137).

On May 19, 2000 CBS News reported a report on home eldercare.  One woman had sacrificed $600,000 in earnings to take care of her mother at home for sixteen years. 

The issue of eldercare and (especially) unmarried adult children (without their own children) is bound to become controversial. While liberals may argue for more federal money for custodial care (especially at home as opposed to nursing homes) and while there is support for tax credits for those taking care of parents at home, this may be an Indian gift for persons who give up careers. Custodial care is not something that can easily be automated, and will always be labor intensive. So eventually, as the Alzheimer’s crisis grows (into a magnitude once feared for AIDS) there could be political pressure to penalize unmarried people who move away from aging parents.

The “Victorian” family values discussed in this chapter did indeed provide an honored place for the elderly in the social structure.  There is a tendency for male sexual values, when not channeled by marriage or psychological growth, to decrescendo into a meritocratic celebration where men and women eventually become seen as “burdens” once they are “too old.”  Persons with strong supportive family ties do, of course, enjoy longer life spans.   

196a Ch 5 P 289, fn 196: Some feminists point out that Social Security is disproportionately important to women, especially single women.

196b Ch. 5 P 290 fn 196 Back in the 1970's, Congressman Ed Koch from New York (himself single) used to advocate that children should be required to pay for their aging parents' care. It would not be good to be an only child. Singapore makes this legal requirement today.

196c  Another indication that social security is really a "tax": for every $3 a person 65-69 earns over $15,500 a year, the person loses $1 that year in social security benefits.

197 David Bergland, Libertarianism in One Lesson (Costa Mesa, California: Orpheus, 1989/93). The worst polluters of the environment have been governments - witness the Soviet Union with Chernobyl. Pollution can be regarded as a property trespass; so even the protection of legitimate property rights demands "democracy." The global warming threat is looking more and more real. According to one study, the planet's temperature could go up by 4 degrees C. by 2100. See Thomas Karl, Neville Nicholls and Jonathan Gregory, "The Coming Climate," Scientific American, May 1997, p. 78.   A United Nations study released in October 2000 announced that manmade sources could lead to a rise of 11 degrees F by 2100.  All of this raises the possibility of big government action and the politicalization of lifestyle “sacrifices.” 

197a Ch 5 P 290 fn 197. Global warming may indeed prove a test of libertarianism. Imagine government (as it had threatened with the gas "shortages" in the 70's) rationing driving privileges, and playing one group off against another (singles v. families). (Personal mobility = personal power!) As with disease, it is difficult for government to guarantee societal "survival" without policing individual private behaviors. An intermediate solution would, of course, be the energy or fossil fuel "tax," which still channels private behaviors for social goals. So we must solve this problem ¾ possible overuse of dangerous fuels ¾ with progress! In the employment area, professionals who can't work the regular schedules required by carpools may indeed view telecommuting as a mandatory job skill. (Think also about the ozone hole problem and air-conditioning freons.)

By the way, PMI mortgage insurance protects lenders from losses, it does not protect borrowers from liability for drop in property values.

p. 187. Actually, the FHA has been a good deal for the taxpayer as long as property values kept increasing. But when government "insures" people against responsibility for their own choices as consumers, people buy more than they can afford and builders charge more; the ponzi scheme will eventually collapse.

198 Daniel Sperling, "The Case for Electric Vehicles," Scientific American, Nov. 1996, p. 54.

199 John Goodman and Gerald Musgrave, Patient Power: A Free-Enterprise Alternative to Clinton's Health Care Plan (Washington: Cato Institute, 1994). The Canadian style (and "socialistic") "single payer" plan, of course, politicizes all disease and associated behavior, but it would have the advantage of taking health care out of the cherry-picking workplace.

199a  Bill Moyers covered the health care issue on PBS with his “NOW with Bill Moyers” show on May 17, 2002. He presented the quasi-libertarian view that the “rich” have used the government and legal system to “wage war on the poor” and isolate themselves from the problems of common people.

200 Discontinuance or misuse of medication can cause resistant strains of pathogens (whether HIV, staph, or TB, to appear and threaten others. There really are genuine "collective" public health issues. Some drug companies, such as Merck, have been willing to provide expensive (but recently successful) protease inhibitors to HIV patients without charge. While some insurance companies have balked at experimental AIDS drugs, HMO's such as Kaiser generally provide any medication that is genuinely medically indicated. Whitman-Walker Clinic, the largest AIDS service organization in the Washington, D.C. area, gets about 50% of its funding from private donations and fund-raising, and 50% from government.

201 "Santa's Sweatshop," US News and World Report, Dec 16, 1996; see "Some Steps Consumers can Take," p. 60.

202 GLIL public forum, Washington, D.C., Feb. 28, 1995. Some insurance companies claim that the use of home test kits could lead to anti-selection.

202a Ch 5 P 290, pr. 1. When uninsured people are hospitalized (often minimum-wage non-union service workers), social workers tell them to empty their bank accounts and hide their savings in "Christmas stockings." How many people get on Medicaid this way? This observation does give some credibility to Clinton's call for universal health care.

Various notes on this paragraph: Of course, the libertarian proposals to eliminate most regulation and licensing can be daunting, in such areas as airline safety or home building (20/20 report 2/28/97). In theory, competition should promote private self-regulating.

Libertarianism would hold that government should not interfere with voluntary bargaining agreements between unions and management.

 203 On January 8, 1996 (the first day back from a government shutdown and an enormous DC blizzard!), an employee at the Fort Worth office at FHA told me everyone was expecting the Republican Congress to abolish the FHA. Actually, FHA made money for the federal treasury as long as property values increased; it fell into the red in the early 1990's. So government do-goodism worked as long as inflation continued and things didn't change. (We can argue endlessly whether FDR's New Deal was really successful or necessary.) Karl Vick, "In FDR Years 'Sleepy Southern Town' Woke up," The Washington Post, Apr. 20, 1997, p. A1, notes that in the early days some loan applicants actually underwent inspections of their home living habits!

Ch. 5 P 291, fn 203. realesta- contains a conceptual discussion of real estate issues and libertarianism.

When one allows another to assume (without qualification) a mortgage in a down market, one is likely to wind up supporting that person, almost as after a divorce! FHA and VA generally don't pursue deficiency judgments, but conventional lenders will go after the individuals in a ("subject-to") assumption chain with the "deepest pockets." Even a foreclosure on a credit record will be regarded by some employers as evidence of unreliable character, and rightly so: people must keep their promises. The whole area of assumptions is rather arcane: the types of assumptions (starting with the most dangerous for the original owner) are subject-to, simple, assigned, and "full" (or novated). The common law "rule against assignments" doesn't seem obvious to the uninitiated.

204 The United Way is controversial, to some people, in allowing individuals (in workplace donations) to choose charities of interest to them. People can avoid donating to groups that offend them. This may mean many poor people receive less direct help, since people do not care about them directly.

205 Mary Ruwart, Healing Our World: The Other Piece of the Puzzle (Kalazamoo: SunStar, 1993).

206 Rosenfels, op. cit., p. 142. (See Chapter 3).

Ch. 5 Section 05: General Comment: It's my responsibility to find the place where I fit in, or where I meet needs others will pay for. It's not the government's responsibility to change attitudes to make others comfortable around me.

Ch. 5 Section 05: General. The Supreme Court decided n 1998 that sexual harassment apply between members of the same sex ia actionable when it leads to a "hostile workplace" finding.

Ch 5: General: John Stossel’s “Give Me a Break” has shown how far anti-discrimination legislation can go—a lawyer in new Jersey is trying to get bars to stop having “ladies’ nights.”

Ch 5: General

Here is some important statutory legislation:

Privacy Act of 1974

Fair Labor Standards Act

Fair Credit Reporting Act

Fair Debt Collection Practices Act

Civl Rights Act of 1964

Civil Rights Act of 1991

Employee Polygraph Protection Act of 1988

National Workrights Institute

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