CHAPTER
5: TELLING WITH PRIDE
Chapter 5 text John W. Boushka
E-commerce links for
hardcopy of book containing this chapter (DADT 1997).
Narrative summary link
for this chapter
See Consolidated footnotes, including notes added since original publication
See Section_01:
GLIL
See Section_02:
Government Shouldn't Legislate Morality
See Section_03:
Family Values and Individual "Lifestyle" Choices
See Section_04:
Let's Build a Fair and Prosperous Workplace
See Section_05:
"Equal Rights for Gays" Is a Special Case of Human Rights
GLIL
During certain Tuesday happy hours, on an upstairs gay
bar balcony that becomes a sauna from the forced-air heat in winter, some
jocose, generally well-dressed men gather for a monthly “social,” to gab about
“our world” of progressive, “market liberal” thought and cultural change.
Except for a rare formal business meeting, the “social,” with draft beers and
tortilla chips, is the way
I began to
go to the socials in 1993, after “disillusionment” on the way Congress had
trashed our attempts to lift the ban (well, not completely). My dissatisfaction
with the totality of each major party (especially now the Democrats), and even
disappointment with Perot’s baby whininess in the 1992 campaign (as well as his
silly position on trade), had driven me more into the direction of eliminating
the prerogatives of government as much as possible. In the 1980’s, in response
to some letters I had published in the
We
consider ourselves technically “non-partisan.” Our newsletter states that we
are “an organization of classical liberals, market liberals, limited-government
libertarians, anarcho-capitalists, and objectivists
organized to promote the political philosophy of individual liberty, both
generally and as it affects lesbians, gay men, and bisexual persons” (and
transgender persons).[2]
There is
some confusion over the terms associated with a limited-government philosophy.
The most general term may be “libertarian.”
At the 1996 Gay PrideFest in Washington, D.C.,
one of GLIL’s officers, appropriately prepared by
having his chest waxed and buffed, handed out tiny cards containing the
“World’s Smallest Political Quiz,” published by Advocates for Self-Government,
in Atlanta; the rest of us posted the quiz results (several hundred partygoers
took it in heavy rain) on an easel showing a square grid (called the
“Self-Government Compass” or “Nolan Chart”) which plots personal opinions[3]
on personal self-government against
economic self-government. The chart shows a continuum of political persuasions
as corners of a square: Authoritarian (bottom),
Liberal (left), Libertarian (top), and Conservative (right), with
“Centrism” at the fulcrum.[4] Many people who take this quiz have not
previously recognized the difference between “liberal” and “libertarian,” or
that conservatism on economic issues (that is, economic self-governance) can
fit well with “liberalism” on personal issues. Proponents of personal freedom
(often called classical “liberals”) are forced to develop a consistency with
their positions on economic freedom (often “conservatives”). Modern
“liberalism” of the political left has collectivized the personal liberty ideal
and applied it mainly to putatively disadvantaged or disenfranchised groups. Social conservatives are forced to
realize their own motive, that their call for getting “government off our
backs” really applies only for conventional families with children. Educational
devices such as these should help sell the idea of strengthening the right to
privacy.
But “libertarian” has come to be associated
with some rather radical proposals floated in the platform of the Libertarian
Party, founded in 1971 and still competing with Perot’s Reform Party to be the
third largest party in the
So said Harry Browne, 1996 Libertarian Party (LP) presidential
candidate, as I enjoyed lunch with him at the Virginia LP Convention in May.
At the national convention two months later, he would articulate his upbeat
message repeatedly on videotapes, “Government Doesn’t Work.”[5] I heard this litany constantly as I cruised
the book bazaar. His suggestion, that we give up our favorite government
programs to keep what we earn, makes sense.
Then we can give to the causes we choose on our own (such as AIDS
research). We could carry his ideas forward and market them, with certain
rhetorical simplicity, beyond the intellectual think-tanks. We could tell
grandparents that if they give up some government entitlements that they may
not really need, then they can, while still working, have more money for their
own children, and then they will enjoy the satisfaction of seeing their
children live better lives than they did.
All this
time, I have led a double life, associating with “liberal Republicans.” I would attend Log Cabin meetings when they
had interesting debates and speakers (such as homosexuality and biology) rather
than the getting-out-the-vote, as for Carol Schwarz in the D.C. Mayor’s race in
1995. Log Cabin had always expressed a conveniently backdoor purpose: to teach
tolerance within the Republican party and conservative movement.[6]
Log Cabin, in popular terms, promotes “social liberalism” in combination with
“economic conservatism,” and this of course blends into “libertarianism.” I
would be invited to speak at a toastmaster’s Republican breakfast club in
In
libertarian schemes, political writing proposes “perfect world” mechanisms to
disarm government redistribution schemes, which seem to violate the equal
protection clause (although today no court would hold that). Individuals will
be better off and psychologically freer once they fend for themselves, and
arguably so will we all prosper collectively.
Businesses will compete freely in goods and services rather than for
corporate welfare doled out as political favors.
People ask
me why I still call myself a “conservative.” After all, libertarianism would advocate the
use of the established political power structure to deconstruct itself, an idea
that some people find contradictory.[9]
When at their best, conservatives advocate government’s interfering with
individual’s personal and economic decisions (even when applied to grown-up
members of the Armed Forces) as little as possible, yet conservatives realize
that the survival (as an “adaptive” concern in Rosenfels’s
ideas of creativity) of ordered liberty can’t be taken for granted. Certainly,
my writings up to this point reflect both concerns. A real free market
generally promotes social justice and, through the growth of economic
arrangements that often arise on an informal, cooperative and self-regulated or spontaneously ordered basis,[10]
encourages people to operate within the expressive limitations implied by their
own intimate commitments. The market, by rewarding individual initiative, thus
promotes one’s “personal best.” I could
probably call myself a “market liberal” and a “neo-conservative” or “modern conservative” simultaneously.
One colleague calls me just plain “limited!”
The best
way to develop an agenda promoting cultural entrepreneurialism is to look at
our basic moral values, and see how they get put into practice when government
steps out. Afterwards, this leads to a focus on additional constitutional
privacy protection, in the last chapter.
Government Shouldn’t Legislate Morality
In the
mid-1980’s, I attended a few Andrew R. Cecil lectures on moral values at the
This all
sounded pretty harmless and benign. Who could quarrel with that?
True,
every time I went on vacation I would go through an elaborate ritual of marking
my belongings and locking up, because there are too many people out there who
don’t care about “right from wrong.”
Government can teach that, because such a standard of morality is
clear-cut; somebody (me) gets harmed by wrongdoing.
But, from
my own history and relationships, I knew that morality meant a lot more.
Morality speaks not only to acts but
also to underlying values which
apparently give people incentive not just to “do no harm” but also to make real
commitments to others. All kinds of expressions, from pornography and
entertainment violence to Wall Street materialism, seemed to denigrate basic
civil virtues; so they were "bad for you."
---
Government,
I maintain, will be driven out of the business of adjudicating morality -
telling people what psychological values they must believe in. Values reinforce
self-concept, and ultimately belong to the individual.
But wait!
Didn’t we learn in civics that representative democracy urges the people,
through the ballot, to make collective moral choices, about how people of a
community must manage finite resources largely by accepting and carrying out
mutual obligations? Through democratic
process, people will define which individual behaviors, and even inclinations
or desires, are morally wrong (or, at least, “practically” unacceptable, say,
among unit-owners in a condo association). Less controversial now (but not so
thirty years ago), democracy will also decide how larger institutions,
especially businesses, may “morally” treat people based on the actual or
perceived associations with vulnerable “groups,” defined by race, religion, or
sexual orientation - both immutable traits and associated behaviors. Democracy
also takes it upon itself to redistribute wealth according to “moral values,” a
notion justifying a government-forced confiscation of earned wealth that
strikes me as morally offensive (even though I do pay my taxes). The “moral
issues” that democracy manipulates have generally grown out of collective
adaptive needs, which start with the premise that survival of an ordered
society, whether Egyptian, Mayan, or our own, cannot be taken for granted. But
individual morality is what gets our attention first. Quickly, majoritarian “moral judgments” merge with prejudice and
psychological lazyboy-ness. People find succor in
insularity; most executives have no understanding of issues from my off-center
street perspective, and I likewise don’t really grasp what it’s like to stay in
the ghetto.
Rubbing
like sandpaper at the grain of moral consensus is the classically liberal notion
of “self-ownership,” as well described by Boaz[12]
as an intrinsic, “natural right” experienced largely through the associated
vehicle of “property rights,” which confer the opportunity to operate as one
wishes with some specific asset (home, land, tool, intellectual creation) over
which one has immediate control and possession. All moral calculations, as a
matter of abstract principle, are to be done from the assumption that an
individual will not violate another individual’s intrinsic and corresponding
property rights. Property rights are carried out by the freedom to
contract. The understanding that
government will limit itself to maintaining this non-aggression between humans
(but forcing people to keep contracts they make with one another) may be seen
as the essence of “libertarianism,” regardless of the various interpretations
of all the various “isms.” “Natural
rights” formulations tend to break down in emergencies, says Henze’s opera The
Raft of the Medusa; societal attitudes towards gender roles, drugs, and,
say, the draft, have been intended to dodge these “disaster movies.” The practicalities of a complex and
(recently) psychologically individualistic society, along with the tendency of
political bureaucracy to entrench itself, leads one to reinvent these rights
the way a baseball hitter fights off a pitch and then drives it from the inside
out. Natural inalienable rights seem a uniquely American concept, from the
Declaration of Independence through the Bill of Rights. The English Bill of Rights
(1689), on the other hand, had seen rights as inherited through families.[13] My concern has been that we must not take
simple principles about human rights for granted but must instead look, in
detail, at the complexities of a real world in which more people discover these
rights for themselves.
In a
complicated, practical world, conservatives like Judge Robert Bork have
condemned the idea that an autonomous individual belongs to the self, apart
from finding a real place in the community.[14]
Bork’s best point is that when society
comprises individuals with no commitments to any family or communities outside
their own myopic vision, these individuals become prey to insidious
manipulation by an impersonal state. Michael Lerner works the same problem from
a liberal perspective, first criticizing the excess of “selfishness” but
calling for public measures to restore a balance of priorities in our
corporations and other major institutions.[15] Bork toys with the paradox of our cultural
emphasis on egalitarianism simultaneous with our selfish individualism. He sees
obsession with “equality of outcomes” as a byproduct of envy; I think it is
more subtle. If government can make everybody “equal” -- loosely, that means,
if government can get rid of poverty - then none of us have to feel guilty
about our own privileged lives or, more important, have to deal directly with
people who make us squirm; we can remain “separate but equal.” In the Vietnam
days, I had already seen how some “privileged” men protested the war, not so
much out of genuine (if misconceived) concern for Vietnamese women and
children, but as a way to rationalize their sitting it out. I had also seen how
the radical left tended to be populated by talented young adults whose own
lives had already gone astray and become unproductive. The point of one’s
personhood¾and freedom ¾ comes into question. Oliver North reads his
favorite quote to open his talk show: “Life is mostly about meeting obligations
to others, with occasional moderate self-indulgence.”[16]
Bork
appeals to the simplicity of having the same absolute rules of right and wrong
(no physics-test-style “part-credit”) for everybody. You live up to your
obligations as a man, and you change into someone else¾David Lynch style¾if you have to! We used to believe in
compulsory military service for young men as a moral absolute, until government
itself whittled that away with deferments. Now, we sense that a “moral” consent
to “different strokes for different folks” really produces a freer and fairer
community, once the individuals have grown up enough. Eventually, we even build
a different collective moral compass, perhaps now viewing conscription as
slavery, and valuing diversity in gender identity.
Abortion
provides perhaps the thorniest example of moral relativism. We weigh the moral
values of a woman’s control over her own pregnancy and of the unborn’s penultimate right to live. Abortion goes beyond an
abstract lower bound on respect for human life.[17] It brings up the issue of our willingness to
really care about people who may be much less than perfect. It also invokes our
process for realizing a person is fully human; today, many people would not
consider a human zygote the day after conception as a person, but today some
people don’t want to recognize African Americans as persons either (less so
than when we had slavery and then segregation).
The recent, however incomplete, information connecting homosexuality
(especially in men) to genetics raises the ethical issue of using abortion (or,
in the future, cloning) to regulate the occurrence of sexual orientation (like
gender) in a population or even eventually of genetic surgery to limit the
pluralism of nature. In ratifying “moral
values” in reproductive rights (and a woman’s control over her own body), the
democratic process would be making double-edged choices indeed. Arguments
against elective abortion to “screen” for genetic “defects” also raise the
moral objection to insisting on always having total personal control over whom
one will care about; accepting the genetic lottery of child-bearing and
parenting sounds like an obligation of life.
A related issue is the “right-to-die,” which would seem to fit liberal
notions of individual rights, until we realize how easily we could slip into
the expectation that people will die once they become “burdens.”[18]
When
morality remains “absolute,” voters might even decide what kind of (adult)
sexual behaviors are acceptable, or even mentionable in “decent” speech. Their
overriding concern would be the continuity and stability of the community,
which is putatively harmed by the covert actions or benign neglect of
individuals, who may not always recognize the ultimate multiplicative
consequences of their actions and values.
Morality,
in authoritarian parlance, is a collectively or democratically decided list of
propositions about right and wrong, derived from communal perceptions of our
underlying natures and limits as human beings. Syndicated columnist Murchison
writes, “The commonness of [our] nature is what makes morality common. It’s not
yours, not mine, but ours corporately.”[19] Allegedly, morality is achieved throughout a
community, as something greater than the sum of the parts contributed (or
subtracted) by individuals’ behaviors. A society that stakes out and follows
morality will achieve better results, a more stable liberty and social justice,[20]
but it has to know and separate right from wrong first. When citizens believe
this, their priorities in public policy become profoundly affected, emphasizing
community good first and a collectivized sense of fairness.
A person’s
actions and expressed values have impact on others far beyond immediate,
visible results. A behavior may be immoral because, if everyone did it our
society couldn’t “work”; we used to feel this way about the draft-dodging,[21]
and still do about income tax evasion. Without codification by the state,
intended to reinforce the church and corporate community, however, such majoritarian moral penumbras¾accepted definitions of
“right and wrong”¾quickly melt away. Morality becomes localized within the values
of the individual. Law is seen as
responsible for protecting weaker (or disadvantaged) people from their own temptations,
or from becoming confused by examples set by the (otherwise immediately
harmless) “self-indulgence” of the more fortunate.
For many
people, religious faith is the ultimate and facile authority for moral
values. The record of politicians in “Christian”
countries in the past may not support this view! Some issues, such as those
which infer community meanings to sexuality, should, in this view, never remain
the province of the individual, because (according to the fundamentalist) the
individual’s judgment is corrupted by his own sin. Indeed, the “original sin,” the desire to
know “good and evil,” to reduce notions of rightness to utilitarian rationalism
and consequentialism, is seen as the ultimate conceit
that drives people into their demises. (We can apparently justify both
libertarianism and social conservatism from “utilitarian” perspectives, based
on our own points of view, which are always truncated by immediate
self-interest.) Both sex and the denial
of sex can become destructive “wrongs” in this view of self-servedness.
Homosexuality (even if not acted upon) gets portrayed (as by Roy Varghese from Campus Crusade for Christ
when he had supper with me once in Dallas) as an “intrinsic moral evil” or by
the Catholic Church (in 1986) as an “objective disorder,” because its
apparently narcissistic values seem to contradict the requirement to put one’s
substance (that is sexuality) to the primary service of others and “God.” The
Since the
time of
My own
urge to moralize invokes a primal fear: without some deep “moral” grounding, I
simply won’t care for other people until I have something tangible (if psychic)
to gain from them.
Gradually,
we began to distinguish between
self-indulgence or gratification,
and self-actualization. Uncontrolled
self-indulgence and execution of urges or “reversible” temptations, of course,
amounts to sociopathy.
Moral sense has to start with regard for one’s effects on others. One grows
into wanting a positive influence on others that is one’s own. Life, even constricted to one small planet,
could be seen as an experience of creativity, lived for its own purposes and
not just for procreation or adaptive concerns. Homosexuality, in this culture,
would become a pivotal experiment in this process. In the 1970’s, Paul Rosenfels
had already taught his students that personal growth always requires
sensitivity or awareness of the real needs of others. Paul’s partner, Dean Hannotte, would write
“truth is one, and what’s objective truth, once attained, becomes the
property of all men.”[22] Personal self-expression, when carried out in
a moral fashion, would always serve others.
My own parents, following their usual fibs about Santa Claus, the Easter
Bunny, and “the stork,” had taught me that they would never punish me if I told
“the truth.” Truth in personal affairs
(unlike salesmanship), to my parents, was always a yes-or-no, no part-credit
matter. Joe Steffan would propose a similar
dichotomy. First, borrowing from the tradition of “natural rights” and (I suppose)
from writers like Channing,[23]
he kicks off with “What can be better than allowing people to live their lives as they
choose,...craft an existence that is uniquely theirs?”[24] I have known the feeling of a personal
“manifest destiny,” a virtual seed[25]
or spiritual gift in my own blood since high school. My own father had once
talked of “mental punishment” in the spirit of denial of personal expressive
choice; young children, around the “terrible twos” go through a process of
discovering what makes them distinct from everyone else and wanting constant
recognition for who they are. Maybe (in grown-ups) this “unique existence” will
become a dangerous (to others) “self-centered” morality. But then, to explain
his self-identification as a homosexual to
These
writers, taken together, have proposed a paradigm which normalizes (to borrow
from relational database terminology) the way individuals can safely set their
own moral directions in a less formally structured world. The Honor and Integrity Principle is a good
foundation for answering Bork’s charges about excess in individualism. It would
extend to the expectation not that one adhere to social conventions and
expectations (with its false veneer of “altruistic” competitiveness) but that one care about others as one cares
about oneself. Ultimately, it would also
invoke the importance of making and keeping real commitments to others, and
respecting the limitations of self-promotion these commitments imply. If enough people adapt their behavior to
these standards, society would no longer have to design its laws to protect its
most helpless members. We could trust human self-interest enough to let people
decide what they want to do with their own property and own bodies, and not let
government set limits for them.
Despite
the international and urban crises of the 1970’s and the frightening
implication of the AIDS epidemic emerging in the 1980’s, people began to
believe that government should not define morality (except perhaps in
collective areas such as discrimination); rather, it should facilitate a stable
society where people will learn morality
on their own.[30] Could we afford not to have the state tell
individuals that unsafe sex is morally wrong, or tell companies that closing
plants shipping jobs overseas to use child labor is unacceptable?
The
intellect of Judge Bork (not on the Court) certainly put some brakes on the
race for moral “liberation.” Our “moral” sensibilities today (expressed in
civil rights laws) would not let a person open a restaurant on his own property
and then serve or hire only Whites or even only Christians. Why? It sets an
example which encourages others to discriminate unfairly against a minority,
and inflames racial tensions. Then, why can we not prevent two men from
enjoying consensual sex in their own homes, if we find that public knowledge
(through “ordinary understanding”) undermines less well-situated men to perform
their roles in society as men and get married and hold doors for ladies? The
“liberal” analyzes this by appealing to fairness and by calculating who gets
hurt by the resultant discrimination. The liberal and conservative positions
both presume a cap on the achievement of personal accountability. The
libertarian invokes privacy and property, and denies government the prerogative
to umpire with such divisive “collective” moral calls, which amount to
“legalized” theft.
This
leaves “liberal opinion” the task of narrowing the acceptable range of
“democratically” defined group morality.
Chai Feldblum
presents the interesting admission that the state may indeed rightfully
legislate morality; but, according to the “Devlin paradigm,” the state may only
proscribe behaviors which make the majority “uncomfortable” when the persons
affected are not harmed. She compares
the prohibition of nudism to the less justifiable ban on sodomy.[31]
The problem will be reliability distinguishing “discomfort” from real harm, and
in assessing the capacity of people to answer just for themselves (which Feldblum proposes to be done by pods of hypothetical juries by a Mutual
Agreement process).
Hopefully,
sensible citizens would see that gay men and lesbians are really harmed by
sodomy laws, once they understand that homosexuality is more than sex. If not, the case for enhancing constitutional
privacy protections (next chapter) gets even stronger.
---
“Moral”
arguments may seem more persuasive in prohibiting “vice” behaviors other than consensual sex, and
enforcement may not be as intrusive.
With the “drug wars” (as previously with
Prohibition) we may indeed be creating rather than preventing our drug problem.[32] Modern liberal opinion sees drug use as far
less “fundamental” to a person’s self-expression than sexuality; in fact, it
may interfere with “self.” That bifurcation
is supposed to give “liberals” a way to “morally” differentiate private sexual
behavior from drug use; libertarians find such distinction a bit unprincipled.
Now, I don’t see what drugs could possibly do for me; I hate the drowsiness and
fluttering heartbeat I get from allergy medications. Nevertheless, some drug
users have told me (even recently) that “getting high” on whatever substance is
how they “discover” themselves and transcend their own causative realities; so,
for them, chemical euphoria amounts to more than immediate gratification. Some substances really do fracture a person’s
reality to the extent he does not know what he does. However, with drugs like
pot the arguments seem to be merely moral ones again, that the drugs provide
easy short-circuits to “highs” and interfere with productivity (just as some
people see homosexuality); furthermore, upper class “yuppies” who buy cocaine
are criticized as subsidizing the blight of the urban ghettos.[33] “Soft” drugs supposedly lead to hard ones
(like crack cocaine) for some people, and these stronger drugs cause personal
character to disintegrate. Does crime
come from this drug-induced loss of “morals” or from the fact drugs stay
underground? This certainly is an openly
collectivistic argument.
Maybe, drug laws can be enforced (particularly
in public places where purchasers could be trapped) with less intrusion than can sodomy laws;
their abuse yields to reliable medical tests, and enforcement could be limited
to public-space transactions. Maybe, for middle class kids, illegality is a
deterrent to use, as it was for me. For the underclass, the “war on drugs”
certainly increases crimes (against everyone) and may well increase, rather
than prevent, the temptation to “try it.”
The “economics” of drug enforcement has made it “pay” to catch marijuana
growers and users rather than persons moving cocaine or hallucinogens.[34] Short of a full libertarian solution of total
legalization, a sensible compromise seems to be to decriminalize mere
possession of substances in the privacy of the home (and legalization of the
distribution of sterile needles by voluntary efforts) but to punish the sale,
trafficking, and public conveyance of “hard” drugs. The Drug Enforcement Administration’s efforts
to catch farmers and even homeowners growing marijuana on their own property
seem cruel and cynical; many people have turned to marijuana growing when
legitimate farming business or regular corporate employment fails (while the
government, despite anti-smoking litigation, subsidizes tobacco). In 1996,
California and Arizona voters quite sensibly authorized physicians to prescribe
marijuana for medical uses, and Federal authorities arrogantly threatened to
arrest any physicians who follow suit; government articulates a domino theory,
that any loosening of the “zero tolerance”[35]
law on drugs will let otherwise undisciplined people in on the notion that some
drugs may be acceptable in private after all. Asset forfeitures[36]
(of drug sellers or customers caught in public) should occur only as part of a
criminal sentence or after full due process of civil trial; today, they are
sometimes an easy ruse for corrupt policemen to extort money out of innocent
citizens who fit certain “profiles.”
Talk show host Joe Madison goes against mainstream media, and accuses
rogue members of the
Perhaps,
in today’s more permissive and tempting world, legalization would be taken as
endorsement of use, until private interests learned how to appeal to personal
pride (it can work with tobacco). However, calls from Harry Browne, William F.
Buckley,[37]
and Peter McWilliams to end the war on drugs need to be considered
carefully. Early in this century, most
substances were legal, and there was no “drug problem.” Of course, there was
not the same rapid distribution system, or the same concentration of vulnerable,
impoverished and family-poor populations in the inner cities that set up an
easy audience for dealers to capture; nor was society as vulnerable to
“mistakes” made by operators of a technological infrastructure. It strikes me
that, a decade or so after Virginia and other southern colonies were founded in
the early 1600’s, their main industry was legal “drug dealing,” of tobacco (the
“spice” of the New World, in science fiction author Frank Herbert’s terms).[38] Government is now trying all kinds of
measures to drive the tobacco industry out of business (or, arguably, to tax
smokers for the harm they do to themselves and pass on to “society”);[39]
however, since the tobacco industry intentionally misled the public, some
libertarians might support the current anti-smoking efforts - I do.
With
issues like pornography, prostitution and gambling, perhaps the think-through
is simpler.[40] When should government protect people from
themselves?[41] This observation does not apply to child
pornography, since it cannot be produced without abusing a child who cannot
give consent.[42]
Government,
in the modern world of enhanced privacy rights, is expected to restrict its
implementation of moral notions to the narrowest construction. “Morality,” for
political caucuses, is to be limited to preventing one person from visibly and
immediately transgressing another person’s will. The state will punish people
(even juveniles) with certainty when they harm, endanger or cheat others, and
when they fail to keep their promises - and that is all. Government will not decide whether or not one
kind of questionable conduct is legally acceptable based on the political
strength of the persons affected or even on their inborn or “immutable”
inclinations or on the behavior’s symbolic influence; only the results of acts
on others is to be considered. When
government does anything more to protect people from their own human natures,
personal freedoms are always lost.
The latter
may be no small order. This concedes (despite “natural rights” arguments
mentioned earlier) a utilitarian notion for the role of law, apparently
required for my proposed Privacy Amendment to be reasonable. The “public”
consequences depend on how such an approach is implemented. One place to start
is to hold individuals strictly accountable for their own choices. (Of course, this does mean literally that one
may be “irresponsible” for oneself and be left alone as long as one doesn’t
harm others.) If you have a kid, you
will support him. It you buy a house, you will honor your responsibility for
the mortgage, even if the pad, like a trailer or used car, goes down in value
(even if someone else assumes the note without qualifying - I got caught on
that one).[43] If you commit a crime against another person
or property, you are, when convicted, punished with certainty but without
regard to the identity (including sexual orientation or race) of the victim -
we don’t need hate crimes laws. If you
drink and cause a serious accident, you will pay for the rest of your life. If
you get sick because of your own behavior (whether sex, diet, “drugs” or
tobacco), you will at be expected to pay for a substantial part of your own
care, at least according to your income. You will save regularly for your own
retirement. If possible, you will purchase at least some catastrophic coverage
for your own health care while you are eligible for insurance without
pre-existing conditions requirements. You will not expect the government to
shield you from private “discrimination” because of the anticipated
consequences of your own behavior, or shelter you from your own past neglect
with “entitlements.” You will not live
on a flood plain, and if you build in an earthquake prone area, you will build
to modern safety codes. You do not play
the “blame game.” Finally, you will care for others as yourself, more than
yourself if your historical or family obligations require. All of this is just
fair play if the “taxpayer” is to sell off interest in your private life.
Sounds like a perfect world, doesn’t it!
Of course, such a drawdown in the use of government as a buffer to
absorb our own petty indulgences would have to be accomplished gradually.
The shift
from defining individual liberty relative to general community welfare to the
“liberal” notion that the individual comes first, becomes workable if enough
people sign on to a voluntary “honor system.” A code like this will only work,
perhaps, if the public can gradually come to embrace a personal honor system.
The moral claim to be one’s own boss is secured by one’s honor, courage, civility,
and citizenship, and by the recognition of personal limits and precedent
obligations to others. These values, the basis of character, need to be explored and debated fully in private
cultural and religious spheres, ever more as government withdraws. In fact, when government defines morality,
people may feel less responsible for developing a sense of moral compass on
their own. The full experience of personal responsibility requires that a
person fully understand, in her own words, the basis for her moral beliefs,
especially as they relate to that person’s boundaries, what is hers to have. By
confusing personal accountability with “communal” or “collectivized” morality
and by romanticizing the rather adaptive commitments of family life, the
socially conservative “right” gets away with denying many individuals the
incentive to comprehend their own personal senses of ethics. On the other hand, when people haven’t
internalized moral values of commitment and meeting the needs of others, they
may seek to gain attention and recognition in destructive, violent ways. The focus in debating moral ideas surely must
shift from seeing morality as a collective experience to assigning it to
individuals to carry out on their own volition. Libertarianism facilitates this
growth of moral sense among individuals, but it does not define what these
morals are beyond simple ideas of non-harm and keeping promises.
Libertarianism, as a political system, by no means gives license for unfettered
cultural individualism. [Libertarianism
doesn’t prevent a localized communalism and associated loyalty sinks from
developing, where people bind together into various religious and cultural
communities and agree to pay tribute to their leadership and their “privately”
adopted rules for these communities. The Mormon Church can still exert its
moralizing influence.]
A simple
formulation of individualized morality is the Golden Rule: “Do unto others, as
you would have them do unto you.” Actually, the Biblical text, “love others as
you love yourself.” is a bit more challenging.
Morality,
seen this way, emphasizes self-empowerment as congruent, not contradictive, to
helping others. The moral imperative to give away all possible wealth to the
poor (an extrapolation from the Rich Young Ruler parable) articulated by
leftist writers like Unger[44]
comes across a copout for people who can’t make commitments to others. Perhaps,
in the absence of something like marital commitment, a less selective “service”
to others is appropriate, if it is part of a growth process in building on the
ability to love and motivate others.
Therapists
- clinical psychologists rather than psychiatrists - are supposed to make their
livings by helping people decide how to recognize their own accountabilities
and limits. To have character, an individual needs to know what is his to have.
He knows , for example, that he has done wrong by compulsively or under
temptation dropping a rock off a highway
overpass even if the rock doesn’t cause a wreck. But other moral matters
really do seem ambiguous, when we become are own pilots. We learn to discern
poverty from martyrdom and loyalty from honor, to keep caring about a loved one
who falls to earth, to renounce both jealousy and aloofness.
People
don’t come into the world as mature adults. How would I have turned out if my
parents hadn’t sheltered me from the violence immodestly growing in our culture
even in the 50’s. I was made to be afraid of “bad words,” so that Rhett’s
famous epithet at the end of the movie
Gone with the Wind came across as a real jolt. I couldn’t even see House of Wax as had my boyhood playmates. Maybe that’s the point,
my parents took responsibility for me! Perhaps it won’t be as easy to explain
to the kids when something is “wrong” when it is no longer “against the law.”
They really will need to grow up in good families, if they are to become like
the role models fighting “the Ban.”.
Family Values, Marriage and Individual
“Lifestyle” Choice
In 1994,
Virginia Governor George Allen actually sent me a form letter insinuating the
Commonwealth’s “Crimes against Nature” law is necessary to protect the social
model of “the traditional family.” What people do in their own beds does matter
if others “know” or even suspect.
Allen’s
letter highlights more bluntly than usual our common perception of “family
values.” Individual self-fulfillment -
personal expression often dressing up sexual or romantic explorations - has
allegedly budded out of American (and Western) family life and gutted it,
leaving children (supposedly intended to derive automatically the greater
material wealth and freedom of their parents ) neglected and rowdy men untamed
and adrift. Family, though good enough at
one time in that western men and women get to choose their spouses[45]
rather than having marriages arranged, seemed to box in one’s ambitions. Family
has, until relatively recently, defined the granularity of individuality. As a
singleton, I am part of the problem because I can focus resources on myself and
not on spouse and children whose needs would always come first. In the past,
the Left would have seen me as an undeserving beneficiary of privileged “class”
which enriches itself at the expense of poor families; today the Right sees me
as having cheated on a moral responsibility to father the optimal family.
Should society recognize the commitments and “sacrifice” required for family
(both economic and psychological) at the expense of unattached (and
particularly childless) individuals? A related debate is, should government
lead such an effort, or does it just get in the way? The very recent push for
recognition of same-sex marriage seems like an homage to family as the “right”
way to live.
I accept,
almost as an article of faith, that the nuclear family does partly explain the
explosion of living standards during this century. In earlier times, single,
self-constructed and “autonomous” lifestyles were publicly unknown. Before
World War II, urban young men were encouraged to live in rooming houses under
“Christian” influence (as my father had lived in a YMCA until he married), and
single female teachers often were forbidden by contract to live alone. Sometimes, lifestyles were collectivized way
beyond the family, both on the American pioneering wagon trains, and in modern
kibbutzim in
There’s no
question, more of our kids today grow up in single-parent homes (often headed
by mothers who never wed the papas) and they turn out badly. Freedom for the next generation will depend upon
enough of our children learning character. Does today’s high divorce rate and
incidence of single-parenthood occur because we have too much freedom, or is it
because government gets in the way of genuine family activity?
Families
today complain that government interferes with their privacy with higher
relative taxation (especially the “marriage penalty”) and intrusive government
(most of all, the
“Family values” has become a tangled issue
with the sudden credibility of the “same-sex marriage” debate; like a slice of
a relational database, the concept looks very different according to one’s
“view.” Only recently have pundits claimed “procreation” as the main purpose of
the family. Indeed, “marriage” provides
other social benefits beyond (obviously) rearing children. These gains include
the taming of men, stability, and a safety net.
Governor
Allen’s superficial connection between putatively immoral behavior (homosexual
sodomy) and elevating the traditional family underscores a fundamental confusion
in conservative thought. Why is it necessary to punish variation from accepted
gender roles (and sometimes outrightly persecute
effeminate men, “butch” women and trans-gendered persons) to strengthen the
family? Allen, Bork, and other conservatives are right in maintaining we do
need to look closely at what is bothering marriage, and debate honestly what
should be done about it. Perhaps the problem does have to do with shallow
notions of individual freedom, without the appropriate commitment and responsibility.
It’s more than gender roles. There is no reason why strong families can’t
accept rotating household chores for husband and wife, and recognize different
ideas about manliness and femininity. Gender hang-ups are a more personal
thing. I judge men favorably, for my own
erotic purposes, on whether they are indeed “real men.” In my own most private
life, I do discriminate.
The debate
over family values brings up three questions of priority. How important are the
legal institution of marriage and the social, psychological and legal props
underneath it?[48]
Has the raising of children lost credibility in our society as a personally
fulfilling obligation? Does the lack of
faithfulness in relationships (traditional marriages) indicate a shallowness of
sexuality and character with the substitution of fantasy and visual stimulation
for real emotion? The combination of these constitutes the essence of the
“family values” debate: should society deliberately not just relieve burdens
but also increase the differential privileges for traditional families with
children?
These three problems intersect as we look at
four overviews of the “family values” problem.
This simplest paradigm holds government should
simply hold people accountable for raising and supporting the kids they choose
to have, and do nothing to undermine the formation and stability of families
the children clearly need. Family
breakdown yields to principled and relatively uncomplicated solutions.
Government should not reward mothers for having babies out of wedlock. Parents
with young or even teen-age children should think twice about no-fault divorce
(not an option in earlier days when women - except during World War II - were
usually more economically dependent on men), but they don’t need to have
government order them to hesitate. Parents should take their own reasonable
measures to control their children’s access to the media, especially now the
Internet.
The second
view holds that a combination of today’s darwinian
workplace and economy, “hedonistic” lifestyles, inflation, and taxes puts
families with children at a grave disadvantage when compared to singles, or
even childless (including gay) couples.
Families feel economic pressure for both spouses to work, and motherhood
is something less than a real “occupation”; gone are the good old days of housewife-oriented
television syndications such as “Homemaker’s Exchange.”[49]
Since 1970, the number of single households has increased (one-person
households now make up 25% or the total); the number of children per household
and the percentage in legally married, two-parent families has gone down.[50] The demands of many employers for long hours
tend to keep couples apart and away from their children, and sometimes
increases the likelihood of divorce.
Single moms may have an especially difficult time attending to their
jobs and children simultaneously. My own experience is that of someone with
only himself to care for most of the time. A male acquaintance who home-schools
his kids tells me he wants to move his family farther into the suburbs, where
there will be more children and stay-at-home moms (nationally, occurring in
about one quarter of two-parent families) in the neighborhood![51]
Focus on the Family communicates in “private” emails absurd statistics on the
affluence and education of gays relative to “normal” straights. However, other
studies have shown that married male heads of one-earner households, at least
at executive levels, tend to earn more, since they fight harder for promotions
to provide for their families. In many companies, there may be relatively few
gays in upper management because gays may (on their own) feel a conflict
between organizational loyalty and personal lifestyle.[52]
A recent NIH study gives reassurance that children (other than infants) placed
in professional, stimulating (and often expensive) day-care may indeed develop
well, and provides some vindicating for couples where both parents work outside
the home.[53]
I may have
trivialized this point. Raising a child, especially a difficult or disabled
child, consumes a parent’s life and reverses most of a parent’s own priorities.
I can see how much my parents gave of themselves just for me. If parents accept
from government or other institutions certain special privileges at the expense
of everyone else, then parents really are admitting they can’t raise their kids
entirely on their own. This gets into Hillary Clinton’s “it takes a village”
problem, and it may be OK for the village to be involved if government keeps
out. But having gays, lesbians, and singles
around complicates things for parents who don’t want to be reminded they need
and take help. It would be easier if we would go away, to our own ascetic
priesthoods.
Conservatives
correctly point to today’s larger tax bite (including social security and
Medicare taxes) as a major cause of relatively more distress to families.
Originally, the income tax code (which used to be much more progressive) was
designed to guarantee parents could keep enough to provide for their kids
before they paid out anything. The simplest remedy is a per-child tax credit,
but that perpetuates dependence on tax policy to deliberately and prospectively
motivate personal behavior.[54] Conservatives also complain that civil rights
laws often prevent landlords and mortgage companies from discriminating in
favor of legally married couples, but neglect to mention that fifteen years ago
apartment complexes often refused to rent to families with children, forcing
them to rent or buy homes before they were financially prepared. Today, private
interests (more than government) often give preferences to families with many
children, such as when foundations subsidize student loans.
Recent
research into child brain development,[55]
its dependence on parental stimulation and its clear association with all of
our human capacities, underscores this point. Can a child who cannot grow
normally because of parental inattention (and drug abuse) really become
responsible for himself as an adult, in the spirit of my arguments? The demands
of the competitive workplace need to be balanced with the opportunity for
parents (fathers included) to spend ample time with their children.
The third chamber questions our seeing
ourselves as almost “too good” to need marriage. A child ready to “understand
things” wants to trust his parents’ motives.
“Papa loved Mama, so they got married and had babies”[56]
- raised Dick, Jane, and Baby Sally.
Daytime television in the 1950’s used to glorify the “blessed event.”
Until Vietnam-Stonewall-Moonwalk, we tended to believe in an old-fashioned
ideal for life cycles: you hold off until you get married, you consummate on
your wedding night, the wife takes the husband’s name and has children, the
husband can provide for the wife and children with one income. The husband is
tamed, becomes a new person; his masculinity is dissolved and reprecipitated. He
identifies his new self with bequeathing to his children a better life than he
had, and maybe than his neighbors’ kids will have. If something happens to him,
on the battlefield or fighting crime in the streets, he is honored because he
has a wife and children. Finally, he can still pretend to himself he is a
“tough” and as much a “real man” as ever; he has proven he can perform.
There is
now a confusing, bewildering multiplicity of ways to self-enlightenment. The
old expectation, that most “normal people” get legally married to one spouse in
a lifetime and raise children, as their first priority and as a pre-requisite
to all other self-actualizations, is now
just another lifestyle choice. Then this ideal is nothing, because it becomes a
burden, or at least an obligation. Family
doesn’t seem to generate enough of its own rewards to pay for itself. It
surrenders some of its allure to the reflexive narcissism (“loving” only
someone whom one wants to “be like”) and “self-centered” morality of same-sex
attraction visible next door, or to the X-movie house a few blocks away. Men,
if they think in utilitarian terms about what they can “get” from their
partners or from their separate lives, no longer “need” the strong marital
bonds prerequisite to successful parenting. After all, most (heterosexual) men,
approaching sexuality from their biological drives, need to learn to value fatherhood and family,
mainly from women, for whom childbearing and subsequent caring come naturally. Knowledge of alternatives, according to some
conservatives, wrecks the whole process, for “masculine” but insensitive and
superficial young men. The options can be more subtle; unmarried X-Files role models Mulder
and Scully come across as having outgrown sexuality altogether. There are
separate cultural distractions which proclaim that both marriage and children
are burdens, even though some infertile couples will spend all of their savings
on bearing a first child. “Don’t tell” means keep sexual (and psychological)
options out of sight from everyone.
Married
people really do have more sex than singles, according to many studies. But the
“sexual revolution” has indeed reduced the allure of penetrative, procreative
sexual intercourse, particularly the consummation on wedding night, as a peak
experience, around which the rest of life can be disciplined. In my own
live-at-home college days, straight chums would say, sexual intercourse (on
dates) made them feel “close” to their
girlfriends; but then they would rationalize the double-standard for men and
women as a way to keep themselves interested
An attitude that regards sex as another “recreation” is like
experiencing church communion as “refreshment” rather than a sacrament, like
marriage. “No sexual intercourse outside
of marriage” used to mean, effectively, no meaningful life without the “deep
sexuality” that is supposed to grow around marital intercourse only. (Of
course, this aphorism also meant ,”no homosexuality.”) Today eroticism, with reasonable precautions,
can be “safe” - from both disease and pregnancy; one can, at least, stay within
masturbation. The obligations of male performance and the prudery of female
virginity are sometimes seen as adaptive “hang-ups”; we have said, “get off
it,”¾there are more important (“creative”) things
to experience in life than intercourse anyway.
This is a curious circle indeed. But if sex just isn’t so important any
more, how can family life remain stable?
We are
rediscovering the notion that sexual interest itself needs to be “protected.”
Laws against public nudity, after all, protect heterosexuals from
desensitization, as if people could become immune to their own sexuality. In 1986, I picked up at the Los Angeles
airport a tract which directly criticized soft-core pornography for causing men
to lose sexual interest in aging wives (sometimes right after childbirth).
Arguably, pornography focuses so much attention on sexual attractiveness that
homely people have a hard time finding spouses. When you become a man, you give
up childish things - adultery, of course, but even the sexual fantasies of
missed perfection, of younger and still nubile women or white-hot men. This
protection of healthy, “natural” sexuality (as Aquinas saw it) does invoke an
odd “moral” paradox; early Catholic teachings (Augustine) had seen a person’s
sexual part as “shameful” and marriage (motivated by procreation) as a moral
compromise.
The church
figures into the delicacy of sexual ukase; the Catholic church has always
provided a “special” priesthood for men frankly disinclined toward active
sexual performance with women and immune to aggressive or accumulative
behavior; Protestant churches do not do so, as if to imply that marriage and
fatherhood must remain a fundamental obligation for all normal men. The
“celibacy” and perhaps “poverty” experience may, for some, provide an effective
way to renounce false loyalties and competitiveness, even if the church (or
some other authoritarian entity) still demands a simple and self-effacing
faith.
Supposedly,
the erosion of marriage and parenting as the expected conduit into adult life,
makes it difficult for people, especially men, to conceive of spending a whole
intimate life with just one other person.
Even in
earlier times, some couples, as my parents put it, “just couldn’t get along”,[57] but, since people think of themselves first,
a bad marriage today is more likely to result in divorce.[58]
In earlier times, a disgruntled wife could suppress or separate her own
expression to keep a marriage together.[59] Laura Schlessinger
often reports that children who go through divorce and remarriage (and there
really is a remarriage “boom” these days) do worse than kids who go through
divorce and wind up with single parents, and neither do as well as kids of
two-parent families. True, in the past, bad families with abusive relationships
did stay together for the kids, and rural parents sometimes looked upon kids as
much as economic asset as psychological obligation. Sometimes splitting up is
the only way to stop or prevent violence.[60] But kids really need the comfort of knowing
that “family” (that is, the children themselves) is more important to their
parents than any dilettante challenge or distraction.
Families
are more likely to stay together when the parents did not live together before
becoming legally married, and, even better, did not experience sexual
intercourse until the wedding night consummation. Then, in at least a numerical
sense, people maintain more stable families (for the benefit of their children)
when the state, the church, and other large instrumentalities of society have
given formal recognition to their sexual relationships. In keeping both
individual liberty and family values, this is the tough nut to crack, to behave
well without the motivation of social approbation.
Societal
support for “family” raises an interesting paradox, especially for women. If
one gets his whole sense of self from family roles, then is one really one’s
own self, really able to account for one’s own choices? This was a pertinent
question for women in the past when they were discouraged from making
“economic” and even political choices for themselves.
Restoration
of the special place for traditional marriage, as a bedrock both for adult
living and raising children, cannot be achieved without expecting unmarried and
perhaps childless people (most gays and lesbians) to sacrifice and chip in. In
short, this pedestal requires “heterosexism.”[61]
This is simple mathematics, it’s like balancing equations on chemistry quizzes.
The
devaluation of traditional “family” has exaggerated differences in living
standards between the West and the Third World. The birthrate (especially among
Caucasians) has dropped in some communities, possibly below replacement levels
as many men and women both come to view children is competition for individual
accomplishment rather than their own unique progeny.[62]
A
fourth problem is, do we really want to put our kids first? That used to be how “normal” men, without
intellectual introspection, validated themselves, by providing better futures
for their children than the lives they had led.
Walking to the Pentagon Metro on Gay Pride day, I saw nature’s paradigm:
two “married” mockingbirds ferociously chased a crow who had wandered too close
to their nest. They would sacrifice
anything for their young. Today, I hear a suburban woman, writing and getting approved
a $200 grocery check, say in the
non-express line, “you know me by the number of child-seats in my van.” A
systems programmer in a PBS town-hall team seminar surprisingly proclaims that
his most important value is his six children.
When a man is gunned down, media focuses on his leaving behind a wife
and children. When The Titanic sank
in 1912, newspaper accounts condemned the survival of first-class passenger men
and the simultaneous drowning of third-class women and children.[63] This emphasis on the biological imperatives
towards reproduction hardly stops with male fungibility. Barbara Bush once told Barbara Walters on ABC
“20-20,” “you don’t have to get married
and have children, but if you do choose to have children, they have to come
first in your life.” Do we really believe this?
Will we back up parents when they sacrifice everything to take care of a
sick or disabled child?
A couple
of decades ago, we thought we could “have it all,” and the profits of freedom
would trickle down to the kids. But men
are becoming deeply uncomfortable about the way, during this age of
individualism, they have apparently put themselves above the needs of their own
children and, corporately, their neighbors’ children.
---
Apologists
for the “family,” however, aren’t afraid to demand restraint and sacrifice from
adults to make the world safer and friendlier for children and less punishing financially
to those who had taken on the challenge of parenthood. “Protection of
children,” however commendable and necessary, makes an easy battle cry for
politicians; remember Anita Bryant’s “Save Our Children” in 1977 against a
Miami gay rights ordinance. Adults
should damn well keep discussion of sexual topics off computer networks (even
before source-screening devices become affordable) because a child might
stumble on them.[64]
Discussion of homosexuality, let alone condoms,
should be kept out of the classroom; and gay newspapers should be kept
out of public libraries or at least filed in adults-only sections.[65] A high school in Colorado Springs stirred
controversy with some parents with a story in the school paper on gay
teenagers, as if telling the truth will validate the “homosexual lifestyle”;[66] if the family-values debate really resolved
back toward the normal family, healthy adults wouldn’t need to watch these
alternative lifestyles. Twenty years
ago, pornographic phonograph records led to complaints, such as a 45’s
depicting “a young girl’s lesbian desires.”
The attempts by some “pro-family” forces to keep all controversial
topics out of any public broadcast would, if successful, make productive
political debate on topics like homosexuals in the military almost
impossible. “Decent” homosexuals,
conservatives say, accept their lot in life and don’t want to impose their
sexual sensibilities upon others or tempt others with their naughty fantasies. The responsibility for controlling what materials
a child sees belongs, of course, with parents. When this duty proves too
burdensome to parents, or when children don’t have competent parents, when is
it the business of government to decide what materials children may access and
risk the level of speech for everyone?
To what extent must adults restrain themselves, voluntarily or not, even
in relatively (at least as intended) private matters to protect the cohesion of
a larger community?
Most parents tell me they want all drugs kept
illegal (even marijuana when intended for medical use) so that it is easier to
keep their kids from even being tempted to try them. Tax cuts should be offered
to families with children, whether they can really be “paid for” with spending
cuts or require higher taxes on singles.[67]
Most radically (discussed in detail later), the “family wage” should be brought
back into the workplace, and companies should (not wholly voluntarily) provide
paid maternity and paternity leave,[68]
even paid sabbaticals for parents. Progressive writers such as Jonathan Rauch
have suggested that the two-parent family [with children] should gain from
public policy, ” not at the expense of homosexuals per se, but at the expense
of single people (including homosexuals) and childless couples (again including
homosexuals).”[69] The United States, the wealthiest country in
the Western world, has its poorest children[70].
This implies that people who “choose” to have kids (perhaps even before
finishing their own educations and anchoring their own careers) are “entitled”
to some support from those who don’t (but who survived childhood themselves),
and that therefore those who don’t have some say on how these kids should be
raised and educated - this is hardly a conservative notion. I personally don’t
mind helping support other people’s kids at all (say, with school taxes) - they
are my future friends - but I do mind that many people with kids resist talking
about this.
Now, we
were all kids once! Aren’t we all better off if we make sure every child gets a
decent start on life, to grow up with good morals? But in a diverse society like ours, can
government really do this, by subsidizing paid leave and incomes for lower and
moderate income two-parent families (instead of single welfare moms) with children,
and taxing everyone else? People really
resent having what’s theirs taken away from them, no matter how noble the
cause. Will businesses and individuals find it in their best interest to favor
families voluntarily?
Generally,
these suggestions focus more on the enormous sacrifice needed to raise a child
rather than on marriage itself, or even on sexual behavior practiced with reasonable
discretion. Still, as noted before, visionary conservative writers like George
Gilder would point out women, through enticing men to marry them, calm down
men.[71] A social ukase towards monogamy, if it truly
rations “one to a customer” in thought and fantasy as well as acts, can make
credible the notion that there’s a right
person for “everybody.”
Until the gay
marriage debate, started when three gay couples sued the state of Hawaii for
the right to marry, the real significance of “family values” to gays was
simple: unattached gay men and lesbians, by focusing on themselves, compete
with “families with children” for shares of a finite economic apple pie. In the early 1980’s, fundamentalist Texas
preacher James Robison would try to equate procreation-free gay sex to
abortion! Gays forced “normal” people to
think consciously about their “heterosexuality.” Anti-gay forces retaliated by
claiming there was no such thing as homosexuality, only homosexual acts; yet
they would then contradict themselves and claim that “common sense” shows
faggots, in their “unnatural” and self-loving mental state, always commit sodomy
even though the public can’t see it happen.
They would come up with shallow statements like Arkes’s
resistance to gay marriage and support of Colorado’s Amendment 2 for the sole
purpose of making homosexuality culturally inferior.[72] All of this sounded to me like simple
collectivism; make those “cherry pickers” pay or play.
With the
Hawaii cases percolating,[73]
the gay community has focused on the supposed benefits of legal marriage
itself. This attitude represented an
about-face from the “liberation” that had once disdained copying heterosexual
institutions. Conservatives find themselves resisting the idea that gays should
declare monogamous commitments and offer the excuse that homosexuality (for
men, at least) must inherently be wild at heart; gays ought to be able to prove
their stability individually. Now,
perhaps heterosexuals have “fair use” of marital “special rights” which include
joint income tax filing (offset by the “marriage penalty”), exemption from
inheritance tax (over $600,000), social security and veterans death benefits,
easier probate, insurable interest,
travel discounts for legally married couples, unemployment compensation
when a spouse relocates to take a new job, and various other automatic
benefits. Mixner
documents his difficulty in getting a joint business loan with his lover.[74]
Virginia offers low interest housing mortgage guarantees to legally married
couples but specifically not to same-sex couples. Corporate America, because of
tax breaks, has always tended to offer spousal benefits to legally married
heterosexuals but only recently and only in the most progressive companies, to
gay associates’ partners. Health benefits present a weird whammy: family
coverage costs several times single coverage, so an employee with a family costs
an employer more for the same base salary (with much of the difference picked
up by the government); yet the “family man” takes home less on his paycheck
than his single cubicle-mate because the premiums are partially contributory.
Conversely, an associate depending on a spouse’s coverage costs her employer
less and takes home more! Very recently, some large companies, both creating
and following prevailing trends, have created an “associate with spouse”
coverage, with no other dependents, usually with a premium about double the
single premium; some have required the employee contributions for spousal or
family coverage to be much more, so that “families” (in the “free” employment
compensation market) again come under a disadvantage. According to the Health
Insurance Protection Act of 1996, insurance companies can charge more premiums
for employees with unsafe lifestyle factors (mainly cigarette smoking) and give
reductions for participation in wellness programs, but may not discriminate
because of family structure or HIV status or other pre-existing condition. The
insurance industry must always strike a careful balance between earning money
for its shareholders and treating its potential customers as fairly (with
respect to privacy and health factors beyond one’s control) as possible.
In fact,
economically self-sufficient gay men and lesbians probably don’t miss the
marriage “benefits”; if they are in good health (and HIV negative), and have
separate health insurance through work or university, it is often cheaper for
them to take care their health benefits separately. Women have sometimes been stuck with the
income tax debts of deadbeat divorced husbands; but this can’t happen with a
couple that can’t legally marry. Nepotism rules in the workplace usually don’t
apply. Palimony (as compared to heterosexual alimony) is unusual. But for a committed gay pair that really
lives like a couple (especially with one partner not getting health benefits on
the job or when both have low incomes), the roadblocks (in such mundane matters
as auto insurance) become a real pain, let alone the tragic situations that
occur with hospital visits. Of course
people may usually whomever they choose as beneficiaries of insurance policies
and annuities. Certainly, if one person of
a couple wants to support the other while the other, say, writes a symphony,
there are problems.
In particular, it has seemed “unfair” that
these benefits should accrue to childless heterosexual couples but not gay
couples. Conservatives have tried to argue that childless heterosexuals can, in
“principle,” procreate; they maintain a form of relationship which is supposed
to be “optimal” for raising children. Therefore, a society that favors children
should always favor heterosexual couples (if they marry and stay married) over
gay couples or singles.
This
argument again gives into collectivism, with rights doled out from government
by the numbers becoming more important than personal initiative. Gays will less
often be parents, but they often are parents, because of previous marriages,
or, increasingly through single-parent adoption or even (for female couples)
artificial insemination. I know one such couple in Dallas, which has a close
personal male friend of mine as the “godfather.” This brings up the whole
home-privacy thing again (even though the presence of the child in a home
mitigates the notion of privacy). In several notorious cases, courts have taken
custody away from natural mothers who happen to be lesbians, with the “sodomy
laws” as indirect (or “presumptive”) justifications;[75]
in one instance in Florida, custody was left with a convicted murderer.
Conservatives claim that the gay parenting and gay marriage issues, considered
together, form a circle, with one objective justifying the other when both
would harm the credibility of heterosexual marriage as a socializing force.
Libertarians might point out that even adoption can be managed by contracts set
up by private agencies.
Two states, Florida and New Hampshire, ban all
adoptions by gay men and lesbians,[76]
and several other have tried. While sodomy laws provide a rhetorically lazy
excuse, states often provide more substance by claiming a child is optimally
raised by one man and one woman, legally married for life. Even if this
assertion is true, it is no excuse to ban all such adoptions, any more than the
burden on a mixed-race child could justify laws against miscegenation (the
Virginia statute was overturned by the Supreme Court in 1967). Thirteen states
specifically allow a gay man or lesbian to adopt (without mention of partner)
as a “single parent”; in practice single gay adoption is possible in most
states. Adoptions by the second parent have been allowed in only a few states.
Yet, up to six million children may be raised in homes with a gay parent.
According to a 1992 survey of gay parenting by the University of Virginia’s
Charlotte Patterson, children of gays do about as well as children of
heterosexuals, and are no more likely to be gay themselves.[77]
A 1996 Newsweek poll found that 36% of
those surveyed believe that gay couples should have the right to adopt.
Some of
the good stories of gay parenting are striking. A significant minority of gay
men (and many more lesbians) really want to be parents.[78] I personally met, in AIDS volunteer work, a
single father (white) who had adopted an older, harder to place
African-American boy. Adoption should always go to the best available parents,
who may usually be heterosexually married couples but won’t always be. In at
least one case I know personally, a middle aged gay man kept both sons after
divorce. Some adoption agencies have
developed an underground gay friendliness, with a “don’t ask, don’t tell”
approach that allows one partner of a gay couple to adopt as a “single parent,”
particularly with minority or even HIV-positive children. On one occasion, an
Ohio agency sponsored an “open house” for a difficult child, and found that
only a gay-male couple showed interest in playing games with the child.[79]
Gay adoptions
could be more common if there were a shift in public policy, emphasizing that
finding good parents (but not always a legally married heterosexual couple) is
better than to leave a child (perhaps in another country, perhaps non-white, or
older and difficult to place) an orphan, and certainly morally better than
abortion. Taxpayers, incidentally,
should never foot the bill for
elective abortions.
The gay
community has set up institutions to provide support for gay or trans-gender
teenagers, and encourages gay adults to become sponsors. Sometimes, older gay
teenagers who have run away from abusive parents (as had a lesbian teenager who
had been placed into disgusting “reparative therapy” in a private hospital in
Utah) may be adopted through specialized placement agencies in larger cities.[80]
One such agency in Washington, D.C. is SMYAL, the Sexual Minority Youth
Assistance League. Former Air Force Captain Greg Greeley, whom I met at an
Arlington Gay Alliance program, helped grow this organization, and GLIL has
sponsored benefits for SMYAL on Academy Awards nights. SMYAL screens its
volunteer mentors carefully, including police and fingerprint checks.
But gay
families are common and credible enough that the old-fashioned joke of
referring to “dogs!” as gays’ only offspring is now just that.
----
This whole
debate demonstrates how much trouble all these government handouts cause! Many
of the “inequities” go away if health care (as currently “subsidized” by the
tax code, which encourages employers to follow the legal definition of marriage
in offering partner benefits, and as often forced by union contracts) is taken
out of the salaried workplace and replaced with medical savings accounts and an
individual mandate,[81]
or if social security is privatized and if the income tax is eliminated or
radically simplified. A socially neutral flat tax code could still carry a
per-child or per-dependent exemption without regard to “marital status.” (Perhaps tax withholding should be eliminated
so that people are more aware of the taxes they do pay.) The public school
system could be gradually privatized, with a voucher system for poorer
families,[82]
so that parents could decide what curricula (ranging from sex education to
religious instruction and prayer) they wanted for their children without
getting taken in by the politicians.[83] Even libraries could be owned by parents,
who, in consideration for their accountabilities for their own kids, could
rightfully decide which literature their own kids (but not other adults and not
other parent’s kids) should see. While
this concedes particular parents the possibility of “indoctrinating” their
children with homophobic, racist, or scientifically dubious ideas, the
overriding concern is still parental rights and responsibilities for their own
children, supplemented by a faith that in the long run such an approach results
in more mature and tolerant (if not always enlightened) self-sufficient
adults.
The
government’s favoring of certain family setups at the possible expense of
others brings up the distinction between “rights” and “privileges.” A right is a facility I have without denying
somebody else of the same opportunity. “A privilege is something often called a
special right when one person gets the access to such privilege through the use
of government force at the expense of someone else’s rights.”[84]
“Heterosexual privilege” is indeed a “special right.”[85]
---
Libertarians
have proposed a very simple solution to the privileges-of-marriage problem.[86]
That is, get out of the business of licensing marriage altogether. “When love
grows to a point where individuals want to form a permanent union, then there
should be no governmental authority higher than that union.”[87] Provide no benefits at all merely because of
the relationship. Let it be a religious ceremony or a voluntary contract
between adults; none of this (other than enforcing a contract) demands
dispensation by the state or stigmatizes “singles.” Mohr writes that individuals, just as they
establish religious identity without the government, ought to be able to enjoy
the psychological accrual of contractual marriage (as a component of
heterosexual social identity) just fine without special privileges from the
state.[88] The state’s recognition of a religious
ceremony, in spite of the First Amendment, became accepted as a way to keep the
races apart! These suggestions to
null-out marriage have the advantage of eliminating all reason for the state to
play favorites with marital “entitlements.”
Any two (or more) competent adults could, however, voluntarily form any
legally binding support and commitment arrangement they choose. As a corollary,
you could eliminate all entitlements and safety-net social programs (even
Medicare) and leave families to care for their own children and elderly. The state, it turns out, has been sheltering
us from caring for people who may be a little bit difficult and expensive to
keep around.
The
libertarian solution is an especially attractive answer to conservative claims
that same-sex marriage would lead to legalized polygamy. The state would simply
not have to honor a contract between a person and more than one “spouse” at a
time; there is no reason to talk about “recognition.” In 1987, I visited the
town of Colorado City, Arizona, where an offset Mormon sect still practices, in
effect, “plural” marriage, with families housed in common dormitories, women
dressed consistently in curtsy-like pastels, and an earthy atmosphere that has
little use for modern technology.
To some
people, such a proposal may sound like something from the flying island of Gulliver’s
Travels. A civilized society can’t afford not to provide some rewards for
stable human relationships. Maybe the solution is to focus on the civilizing
results of monogamous love, and realize that stability for children is a
by-product. Practically all ethicists agree that traditional “family” is a
two-step process: first, the parents-to-be (a mother and father) must commit to
each other (with disagreement only as to how much recognition and subsidy the
initial marriage “main event” needs from the state), and then they provide a
stable, nurturing and somewhat sheltering home for the children they have.
As the
Hawaii marriage case unfolded, the gay community found it could indeed turn the
pro-family arguments on their heads.
When two adults take care of one another “until death,” don’t they take
a burden off of the public and don't they deserve recognition? If they’re
monogamous, isn’t that a bit safer for public health? Don’t people live longer
when they know they have specific significant others to whom they are
important? Isn’t commitment between two adults a good thing that ought to be
encouraged? Already, native American and other ancient cultures have recognized
same-sex relationships,[89]
perhaps as special variations to enrich the general community.
These
arguments would throw “conservatives” on the defensive. Sometimes, like talk
show host Steve West, they came up with simple tautologies: “Gay marriage is an
oxymoron. Two men ¾ that’s a friendship. It’s
Adam and Eve...” A “friendship,” more an
Austria-Hungary confederation between two autonomous self-actualized humans
than marriage, is a desirable experience.
Yet, I once felt insulted when someone I had approached at Julius’s
said, “all I want from you is friendship”!
But a good friend is always
preferable to an unfaithful “spouse.” Friends sometimes make a family.
Legally
recognized “gay marriage”[90]
has suddenly come to be viewed as the quick route to total political and social
equality for gays and lesbians, surpassing the military ban and ENDA (below) in
priority. The immediate panic supposedly comes from the belief that the Full
Faith and Credit Clause (Article 4, Section 1) of the Constitution would
require every state to honor a “gay” marriage performed in Hawaii (a
development which might make Hawaii a “Nevada” mecca
for gay “tourists.” Congress has reacted by passing the “Defense of Marriage”
Act (DOMA), part of which may well not survive constitutional challenges since
it tends to circumvent the Full Faith and Credit Clause on a questionably
reflexive argument.[91]
President Clinton signed this law “behind cover of darkness” in September,
1996, while the Democratic Party publicly maintained that the bill was
vindictive and unnecessary. The law defines marriage for federal purposes (such
as social security and veterans benefits, income tax laws, and military spousal
benefits) as requiring exactly one man and one woman; states may do what they
please but do not have to honor each other’s same-sex marriages. Critics of DOMA (GLIL included) maintained
that Congress should not interfere with states’ responsibilities, although they
did not explain why the federal government should not control its own
appropriation of spousal benefits (if they are to exist at all). Conservatives
scuttle between excuses, varying from outright homo-hatred to claims that
marriage is, after all, just for the kids. David Mixner
tells audiences at his book-signings[92]
that DOMA is “legalized” apartheid; but
the isolated, ghetto status of gays has always been defined by our culture
until gays started not just coming out but visibly succeeding as
individuals. The idea that winning “gay
marriage” solves everything is laughably naive.[93]
The military ban, after all, excludes gays (or attempts to expel them) from a
significant area of employment (the Ban really does define second-class
citizenship in federal law). The marriage issue seems more about who gets some
increasingly marginal benefits from the state for giving up some personal
autonomy.
I propose
another solution. States should recognize marriage as a contractual commitment
between two adults, where at least one of the following is true:
(1) The
household has one third-party dependent, which may be a child (even expected in
pregnancy) or an elderly or disabled adult, or could include a child sponsored
through a recognized charity with a minimum yearly contribution ($10,000). Each
party accepts binding commitment to support any children born until the
children reach adulthood.
(2) Neither
party has been divorced, and both agree to provide lifetime contingent support
should one partner become disabled.[94]
We mean it
with this provision #2, folks! Your partner becomes disabled, and you drop
everything else in your life to take care of him or her, and there’s no way out
of it. You need to be able to make this kind of a commitment to another adult
before having and raising kids. A
“second marriage” (even for heterosexuals) after a divorce and without dependent
custody would no longer be honored. [Louisiana has, in 1997, passed a law
offering heterosexual “covenant marriage” which precludes a future no-fault
divorce. Twelve other states are now interested. Would many proposals fail
because one partner refuses the covenant? Will more couples just “live
together”? Some studies have shown that couples who lived together before legal
marriage are more likely to divorce, probably because the law seems to give
some punch to the notion of consummation. So libertarianism is aptly
tested.]
An alternative
form of #(2) would recognize dependent-less marriage only after some defined
commitment period, say five years. This would arguably penalize young man-woman
couples who have every intention of staying together, because many couples
(especially gay male couples) don’t - but again, that’s a collectivist
interpretation.
This
proposal would certainly treat gays and heterosexuals more or less the same
(except perhaps for the likelihood of children), and would emphasize that the
couple must earn, with very high standards of conduct, the benefits it gets
from “the state”; it doesn’t get them just from the relationship. The federal
government, in this scenario, would drop DOMA and honor whatever the states did
as long as the states stayed within these rules. Yet, this proposal would require
A much
more pragmatic proposal, however unsatisfying, is to fix the problems for gay
“domestic partnerships” in pieces, dealings separately with inheritance taxes,
hospital visits, honoring of wills and, particularly, the right to live in
neighborhoods zoned “family-only.” Keep
the lawyers employed. Is this a copout? Conservatives maintain that domestic
partnership gives or reinforces “privileges” (especially shielding from housing
or insurance benefits discrimination based on the marital status of a couple)[96]
to those who don’t take on the long-term obligations of marriage; Gallagher
admits that such limited privileges should be allowed only for homosexual
couples. One attorney has criticized the idea of tying domestic partnership to
public registration.[97]
Indeed, some proponents of gay marriage write
as if, even for gays, singleness is a decidedly inferior state. Jonathan Rauch
writes, “From a broader society’s point of view, an unattached person is an
accident waiting to happen.”[98] Indeed, I’d be in real trouble if I became
disabled (even through no fault of my own) with no significant other to help or
really care about me and with insufficient private insurance; either the
government takes care of me (and makes me a “burden”), or I die. So if homosexuals can reasonably expect the
right to marry legally, society may surely expect them to use marriage and
wonder if gays will really implement marriage in their own lives or are simply
bluffing. Gay marriage should not be appended to a list of “lifestyle options”; it should be
“privileged” and “expected.” This comes almost back to “papa loves
mama...” Rauch offers the “conservative”
world a gambit: a ukase to learn to love a same-sex partner for a lifetime and
walk down a Road Really Less Traveled[99]
becomes more testy than either “changing” into a “family man” or leading an
adventurous double-life and always withholding the whole truth from everyone
you know. For me, staying interested in
a same-sex partner for a half-century as he grows old would be more daunting
for me than remaining faithful to a wife for that long.
Anybody
who knows me would cackle at my resentment of the ukase to marry. The “Self-Policing Social Code” of one gay author
proposes, “I’ll drop my search for Mr. Right and settle for what’s realistic.”[100]
I’m supposed to let myself go, and get sexually aroused by someone who
previously would have repelled me, or left me inert. My gut reaction is, maybe I really would be
better of “straight”; if our culture is going to revert back to this morality,
then our community values really must conceal some things to protect young
people’s to grow up with a realistic and committed sexuality (straight or
not). This takes me back to those
horrible days of “therapy” at NIH; it gets pretty heavy for someone
unattractive like me who will be perceived as parasitic if he asks for a “date”¾I’m supposed to settle for someone on par
with me and then never think about “Mr. Right” again! It just isn’t healthy to live through
imagination or fantasy, to keep a hidden eye on your own private standards, and
remain alone and independent. To be safe, you needs somebody to grow old
together with! (I hate it when fast food places ask me if I want a senior
citizen discount.) Of course, there is
comfort: with many gay couples, one partner is much more “attractive” than the
other.
True privacy (the kind I enjoy) is a mirage;
you make your identity a public expression, of what you really value in other
people and of who makes you tick, even if the behaviors associated with that
identity remain hidden. You have to belong to a family; you can’t fart too
much, or get up in the night to wee-wee without a nosy partner’s worrying about
your prostate. The meritocratic notion
that you can make it on your own very far into adulthood becomes a trap to make
people feel guilty about their own shortcomings.[101] You get into a relationship in order to be
needed; and once you are needed (even, perhaps by relatives you didn’t choose),
their needs are supposed to supersede your own plans.[102] The “creationalism”
paradox arises: does one get married in order to have a partner who makes one
feel good about oneself, or should one feel good about oneself first? And even
if “marriage” is a pretty essential experience for many people, why do people
feel they need to have the state tell them their relationships are OK, or
better than someone else’s? The whole institution comes to look like a setup,
necessary for the welfare of the community and children and the long-term
socialization of men, but not particularly of visible advantage to the
individual. The friction in our culture over self-concept extends to a
political conflict over using the state or large institutions to channel proper
development of self-image.
The
“Self-Policing” (or perhaps “social responsibility”) code could extend to
openness to becoming a parent. Popular morality says, don’t cause a child to be
conceived until “you” are ready to support it - and be totally dedicated to it.
I’d never be “ready.” Most young fathers I know, as through the workplace, echo
that sentiment. They took the dive, and like the change of self that fatherhood
brings, for many men - a self-affirming event, contrary to their expectations,
as so well demonstrated in the 1995 comedy film, Nine Months. If parenthood were to become an expectation even for
gays and lesbians, Maggie Gallagher’s suggestion “that every baby born in
America be under the guardianship of a competent adult”[103]
could be reinforced. More abortions could be prevented with adoptions arranged
in advance.
Had I
grown up with a social code that respects same-sex marriage and “expects” it,
and, moreover, which expects couples to care for others besides themselves
(whether through adopting children, caring for aging parents, or involvement in
sponsorship programs), I would have lived differently. Maybe one way to put
this is to suggest that our culture should have expected me to show I could
relate intimately and consistently to others before I could expect to be taken
seriously (particularly when speaking to political questions), make a name for
myself, or ratify my own importance. Perhaps I would have believed in a
“kinder, gentler” attitude towards others, one which doesn’t withhold love for
people who fall off their imaginary pedestals. I think I would have made one of
my nascent “relationships” work. It does make me uncomfortable that I can
apparently focus all my resources on myself - but that’s not quite true; my
mortgage situation gave me the financial experience of a pseudo-divorce and at
least temporary “alimony.”
Until
recently, I have not viewed government’s denial of our right to marry and
(sometimes) adopt as a profound insult like the military ban. Certainly my
personal history helps explain my attitude. Were I a woman, however, I would
probably feel the same insult if the government claimed I could not
simultaneously be gay and a fit parent.
---
The
decline of the family and marriage has been linked to an excessive,
technology-driven rise in individualism. “Liberalism’s thirty-year fascination
with the individual’s right to choice and self-gratification” has brought
marriage “to the brink of extinction”[104]
with often tragic consequences. True, sometimes “liberalism” has forgotten that
commitment goes with choice, if choice is to work. But just as with
individualism and consumerism, there is a downside to family. The Mafia
provides an extreme example. Its capacity to build kinships of previously
warring tribes, so dramatized by Romeo and Juliet, overdoes itself, as loyalty
to family becomes more important than individual truthfulness to self. The
family, transmitter of values to children, also necessarily passes down
differences in wealth from the generation, as a reward for deferential loyalty.
This is a necessary price to grow strong individuals at all. More pervasive is
the family’s tendency to filter one’s own thoughts and intentions. One keeps one’s own message quiet to protect
the family. Within the family, the lines between self-indulgence and real
truth-seeking must be carefully drawn.
Strengthening
traditional marriage and family will not, as conservatives claim, by itself
eliminate poverty; it does make impoverishment more tolerable, and reduce the impulse
to commit crime. When people reach adulthood, they need, in addition to family support,
the freedom and opportunity to become reasonably self-reliant, and to decide
what they value in other people. They need to be able to determine this before
they make commitments.[105]
They cannot do this without permission for a certain amount of self-observation
and challenge to the culturally accepted “truth.”[106]
Political and religious culture must encourage individual independent thought
as moral values themselves, even if the culture expects individual attitudes to
migrate towards common good and moral precepts.
“Family values” can be promulgated only by making social outliers support
other people’s families and children; and that is not conservative!
Let’s Build a Fair and Prosperous Workplace
If
government withdraws from enforcing “morality” in private behavior, the private
workplace (and other commerce, such as the housing market) may inherit this responsibility and
“opportunity.” But the decentralized, “entrepreneurial” and competitive
character of today’s employment practices will discourage corporate attempts to
implement unwritten, but universally understood, laws, as in the past.
Nerds
better than me have captured major “Little Roundtops”
in the workplace. The virtues and spoils of individualism and consumerism both
have driven the business restructuring and “downsizing” boom that makes so many
families nervous and “powerless.”
See how
the shorts and tank-top crowd took on
Much is
written about “downward mobility,” how heads of middle class families stumble
and never quite recover their places in society. A 1984 PBS drama from William
and Mary shows an executive drummed out of a position, supposedly for his lack
of “marketing expertise,” when he is edged out by a rival. Sometime salaried professionals
are derailed when judged by their abilities to perform with unusual
vendor-supplied software packages or other constraints; the “customer” is not
always right, let alone comfortable. All kinds of moralistic advice is given,
from starting your own little cottage business on your PC, to doing grunt work,
to turning to “family” for support.[107]
“Entrepreneurialism” has sometimes become a euphemism not just for freelancing,
but for buying your own job; this may be healthy if it means doing what you
want to do rather than progressing through recognized channels. Workplace
moralizers urge people to “work for free,” and students or even salaried
professionals retooling themselves for computer programming positions submit
resumes and cover letters offering to “volunteer” during probationary periods.
In my career (though not recently), I’ve seen my share of it, of managers
conspiring to edge out their rivals with bizarre manipulations of company
progressive discipline.
The public
dialogue about “discrimination” in the workplace has become almost trite. What
everybody worries about is the “market value” of their own services. If I get
laid off today, will I find a reasonable job within a month without uprooting
my (or my family’s) life? If I’m a member of some “minority group,” am I better
off individually if I’m legally protected from discrimination when, as a result
of regulations, there are fewer permanent jobs at home because companies have
to play self-defense and may feel tempted to go overseas? Am I better off if I
win all kinds of fringe benefits from unions or government regulation, if there
are fewer openings available? Quantitative opportunity may prove the best
practical antidote to discrimination.
Discrimination,
for an individual, is part of fundamental self-expression; for discrimination,
after all, means noticing differences
and making decisions on what has been perceived. As a homosexual male, I know all to well how
much this “right” means in choosing a partner, or even a friend. The “superficial” means everything in what
makes another person matter to me, but such sensitivity has no moral place in
business dealings, whether ratified by corporations or by individuals.
Gay activists have always wanted Congress to
add sexual orientation to the categories protected by the Civil Rights Act of
1964. This Act had prohibited discrimination in employment, housing, and public
accommodations, based on race, religious beliefs, national origin, gender, and
age (over 40).[108]
It did not protect independent contractors (“freelancers” paid for piece-work
and who supply their own tools) and federal employees (who have their own
non-discrimination rules). Exceptions are allowed for “bona-fide” job
qualifications, as in acting roles; but some of the Equal Employment
Opportunity Commission’s enforcement efforts have aimed at silly targets, such
as Hooters, a speakeasy chain hiring cocktail waitresses (but not waiters) to
please heterosexual men. Over time, federal law or administrative rules have
extended other protections, such as pregnancy in employment (1978) and having
children when renting an apartment. Many states have extended protection to
marital status, pregnancy or having children, and (with eleven states) sexual
orientation. In 1994, Congress passed the controversial Americans with
Disabilities Act (ADA), which forbids employers (and in some cases insurers)
from questioning about or discriminating because of (real or perceived) medical
conditions (including HIV infection)[109]
not interfering with a person’s ability to perform the specific tasks of a job.[110] The ADA requires even small employers to make
accommodations for handicaps. Outside of specific industries (such as
transportation) with safety concerns, employers probably cannot require general
physical stamina for contingencies such as on-call duty, except, perhaps, for
highly paid “key persons.” The ADA (as well as the 1993 Family and Medical
Leave Act) has sometimes invited abuses by employees, such as demanding leave
for “emotional stress.” Testing for
genetic “defects” will certainly become a workplace and insurance issue soon,
and the call for more government oversight to protect those from discrimination
for non-behavior-based but predictive characteristics sounds more reasonable
than a lot of other regulation.[111]
Federal
“affirmative action” has required employers to make an active attempt to
recruit and promote minorities, and sometimes to maintain quotas,[112]
all to remedy past discrimination against the minority as a “group.” In the 1960’s, it effectively started with
forced school bussing. Minority-owned contractors sometimes benefit from affirmative
action, as have minority students. The arguments for affirmative action have
centered around the advantages white male job or university applicants supposedly
enjoy because of their “good old boy” family connections, maintained in past
generations by discrimination against minorities. But affirmative action can
force a white male to yield a job or school placement to a less qualified
person just because of his own immutable race and gender. Affirmative action
has led to successful lawsuits by white males who can in turn claim reverse
discrimination because of race. Civil Rights laws have sometimes provoked
frivolous lawsuits claiming racial, gender, or age discrimination[113]
(and the addition of triple punitive damages in 1991 has sometimes extorted
companies into settling unfounded suits without trial). Willful companies have
often found creative ways around gender or, particularly, age discrimination
laws by manipulating performance appraisals or the interpretation of “bona fide
job qualification” rules; the abuse of discrimination law certainly hurts those
who might deserve to be protected by it. Federal attempts to promote “fairness”
in the workplace, however well-intended, has sometimes provoked expensive
complications that may encourage companies to downsize or convert their
employees to freelance. State laws seem to work better. Whatever the facts
about the recent Texaco lawsuit,[114]
many larger companies feel pressure from their stockholders to promote
workplace diversity[115]
and would do so even without the threat of discrimination lawsuits. The public as a whole favors voluntary
efforts towards diversity but now opposes racial quotas (by margins up to 95%)
in employment and higher education.[116]
Pure
libertarianism, remember, would actually oppose all discrimination laws, even
for race.[117]
But there is an important caveat; most libertarian policymakers would admit we
probably can’t just throw Civil Rights laws away, leave it at that, and have a
fair society. If one threw out all of the supposedly illegitimate functions of
government on “day one,” however, we would have a very different world. People
wouldn’t be able to afford to make economically irrational decisions out of
racial or religious (or any other) prejudice. No one would pay more for a home
than it was worth just to be in a “white” area if one really had to keep up the
payments, forever. Another important libertarian observation: while Civil
Rights laws have commendable and necessary objectives, they are extremely
difficult to enforce without self-sustaining bureaucracies and (in practical
terms) evidentiary rules that require employers and landlords to bean-count and
aim for quotas.
The
plain truth is, some people’s skills on the open market (especially without
affirmative action, or age or disability discrimination protections) no longer
justify what they have been making.[118]
The value of job skills is like real estate or cars; it can go down as well as
up[119].
No longer is “the pay the same.” Doing the best you can isn’t necessarily
enough; if you don’t get your job done, you may no longer have a job. Furthermore, some people, like the gentry in
England at the time of the first colonies, are frankly spoiled. They have let
their technical skills go fallow.[120] It’s a twenty-four hour world now. People with hard skills (including “trades”),
to make a product that most people “hire” somebody else to build, may be in
great (if short-term) demand. Particularly important is agility, the capacity
to pick up news skills quickly and retain them when infrequently used, and to
work responsively in a team environment.
Business investors and “CEO’s” (however well compensated themselves) can
exploit a remarkable duality: some highly paid people probably could not deal
with the regimentation of workers who make a fraction as much, so they don’t
“deserve” to keep their upper-middle-class lifestyles. I wonder if I could
balance a cash register at the end of a dangerous night shift at the 7-11, so
do I “deserve” to live as well as I do?
I have heard MacDonald’s described as a place where you find out “if you
can work.” Even in government now there is sometimes a tendency to hold
individuals (rather than “the system”) personally accountable for all that goes
wrong, as when the District of Columbia’s Financial Control Board fired over
150 employees, not for budget cuts but for “lack of commitment.”[121]
Why was
corporate culture twenty years ago so “paternalistic”? In the post-War world
where America was in control, the conformist discipline of the “good old boy”
network seem to guarantee at least a reasonably steady productivity. The kind
of progress that put man on the Moon seemed to come out of the collectivist discipline
that had undergirded the war effort twenty five years
before. There had previously been a terrible price for “stability” in loss of
personal freedom, especially in the highly supervised, almost military life of
“company towns” early this century. Today, by and large, good jobs pay well and
allow ample personal freedom. But once the rest of the world started to catch
on to the good life, people had to fight harder on their own to compete.
It was
never easy, not even in my own adventurous career field of information systems.
Now, headhunters say “the jobs are still out there, but...” you have to have a
perfect fit, show confidence and enthusiasm.” The demands of absolute
commitment to work above all else (except immediate family) comes not so much
from ideology as from the difficulty in prospectively scoping out the work in
today’s development projects, however formal the methodology; projects just
have to go in and they have to be right!
It has felt good to get myself back after a spell of seven-day weeks.
I’ve discussed my attitude towards work and my personal disdain of promotions
already (in Chapter 3). But actually, many managers, even in today’s world of
“downsizing,” still prosper if they are really doing what they want to do, and
if they really identify with the notion of advancement for the good of the
family (and can really do by themselves most of the jobs of their
subordinates). One lesson of this period of takeovers and restructuring
resonates oddly with the growing fad of self-actualization: to get anywhere,
and have a solid basis of success in life, one must accept certain limits of
self-consistency, focus on certain goals, and be willing to exclude other
competing interests. Such a solid psychological foundation should help one
learn much more quickly, and pick up new hands-on skills with less repetition.
The more these goals involve the needs of others, the better.
My
dependability and endurance, and my capability to function as an asset person
of last resort (who can solve a critical problem by myself but yet serve as a
technical team-leader even if people don’t report to me), have been major
components of my strategy for remaining competitive in the workplace. What
happens if I become ill, whether due to past sexual behavior, fatty diet (I
don’t smoke), or getting older? Should
age or disability discrimination laws protect my position in the workplace? I
don’t trust these laws,[122]
and I don’t want to depend on them, if it means my employer could hire fewer
people, or other people had to cover for me at their own expense when I am less
capable. Maybe this has bad effect; I don’t go to my HMO very often, because I
don’t want bad news. A doctor on an Adventuring hike scolded me for skipping
out on the blood pressure tests, PSG antigen, and sigmoidoscopies.
But I don’t have others depending on me at home; if I stumble, there should be
no sympathies.
My evolving workplace paradigm suggests that
“moral values” will be implemented by voluntary contractual relationships
(backed by government’s authority to force contracts to be honored), which
should encourage “right” (instead of “wrong”) behavior out of self-interest.
Proscriptions against drug use, for example, would be “enforced” when employers
test for drugs in order to maintain safety, information security, or competence[123].
Publicly visible off-duty behavior (such as publishing articles or appearing in
films or television) could be regulated by private agreements.
Actually,
the potential for conflicts of interest[124]
because of off-duty political activities (and not the more visible financial
conflicts) is often overlooked. Many jobs, such as trial lawyer or lobbyist,
obviously subtract the person’s right to speak for himself, something that more
introverted people (like a lot of programmers) take for granted. The growth of
the internet and desktop publishing will give determined individuals the
capacity to leverage their own political opinions and possibly cause
embarrassment to the corporate employers (or, indirectly, individual customers)
that feed them. There is a trade-off
between the obvious benefits of taking public and even moral debate back from
the special interests, and obedience to the moral obligations of loyalty to
customers, even if that fidelity has diminished in these days of corporate
downsizings. But loyalty to the products
of a company needs to be distinguished from loyalty to its political stake in
government spoils. Ultimately, the quality of our debate of major public policy
issues is improved when associates are free to speak up on issues rather than
leave articulation to bureaucratic “experts” (just as it is improved by the
opportunity to discuss sensitive sexual topics in telecommunications media).
Companies need to articulate loyalty
policies that address employment status (officer, exempt, hourly, or
contractor[125]),
the expected use of employees’ names for the companies’ business purposes[126]
and the presence of targeted customers. To what extent must representative democracy
and capitalism remain adversarial? In
1985, a manager, just before leaving my (credit bureau) employer himself,
handwrote on my review a grade for “loyalty.”
I took his indulgence to refer to the credit industry’s apparent (at the
time) financial stake in tracking down consumers at risk for AIDS; but my
employer never actually did this.
Security and competence might be maintained by
requiring associates to be licensed (perhaps by a private association
rather - note that writers and
programmers don’t have to be licensed!) or bonded and, particularly,
creditworthy. Government should require that people be able to challenge
incorrect information accumulated about them, and limit the information to
items which can be verified, and this would not include the recording of sexual
practices. Government is a bit disingenuous in prohibiting most private
employers from using lie-detection technology, but then using the polygraph
itself in sensitive national defense jobs;[127] it seems more honest to allow the tests but
to publicize their sensitivity and selectivity so that a person knows how much
personal risk she takes (of dismissal for unfounded accusations) when taking a
particular job. The collection of credit
reporting companies, insurers, bonding companies, and private accreditation
associations might be perceived as a “shadow government” but competition among
them should prevent the collusion that would reincarnate political barter.[128]
Before
delving specifically into gay discrimination issues, I can list a few general
suggestions for government deregulation and accompanied corporate behavior that
would restore some career stability and probably improve most bottom lines.
Some are more “obvious” than others.
(1)
Affirmative action should be repealed.[129] Discrimination law should be reviewed to
eliminate frivolous abuses, such as “mental health” claims under ADA. Programs which directly take into account
economic disadvantage (as opposed to race, gender, and ethnicity) might, on the
other hand, actually be increased. Disparate impact analysis (as in age
discrimination, where some older associates do not keep their skills
modernized) should be replaced by evaluation of individual job fitness only.[130]
(2) Health
care should be removed from the workplace (replaced with a subsidized
individual mandate and medical savings accounts). The alternative is to allow
individuals who pay for their own health insurance the same deductions as
corporations (if the current income tax structure stays). Would universal mandatory
recognition of “gay marriage” invite abuses which might coax employers to stop
offering spousal fringe benefits anyway?
(3) End
the secondary taxes on capital gains (as in the Forbes flat tax), or, at least,
on long-term capital gains (to encourage stocks to be held longer).
(4)
Employers should be willing to invest much more in training (and not expect to
find everyone “job-ready.”)
(5)
Associates should be held to high standards of professional certification and
personal creditworthiness.[131]
(6) For
“core business” salaried associates (or particularly those associates whose
direct external customer contacts impose special diligence and impartiality),[132]
employers should consider more carefully the political and commercial loyalty[133]
they expect (these requirements may be mitigated by state laws and
employment-at-will “public policy” exceptions designed to protect
whistleblowers[134]
or legitimate debate), and guarantee more stability (such as bigger future
severance parachutes) in return.[135]
(7) Much
more of compensation should be “variable,” and tied to performance bonuses and
employee stock ownership. Piecework compensation should sometimes be tried.[136] Rules allowing associates to be classified as
“contractors” should be relaxed. The Working Families Flexibility Act, which
would allow hourly workers to obtain compensatory time in place of overtime
pay, should be enacted. Short-term and partial disability insurance should be
offered to help persons who would otherwise lose compensation due to sick or
family time off.
(8)
Teamwork, as opposed to individual competition, should be developed.[137]
Associates should have the option of investing directly into subunits[138]
of their employers. Associates should
know and even help determine each other’s compensation, without flouting
discrimination statutes.[139]
(9) Union
membership should never be a condition for employment; right-to-work state laws
should be encouraged.
The last
two items provide the biggest controversy.
A few manufacturing companies (such as Lincoln Electric Company near
Cleveland) have successfully adopted a policy of pay for “piecework” only.[140]
Layoffs are avoided by simply paying in proportion to output when demand is
down. Other recent examples are NUCOR Steel and Harman International.[141] Companies could be encouraged to decentralize
workplace operations into self-managed teams which have considerable control
over their own budgets, bonus compensation, working hours, and policies. With
some progressive loosening in tax laws, these teams could even be capitalized
separately as quasi-partnerships.
Teamwork
has become the paradoxical partner of personal self-reliance in the past few
years, as companies rediscover the importance of some stability to maintain customer
service and loyalty. “Management by Objectives” has become supplanted with
“Total Quality Management.” The earlier trend towards winner-take-all has
backed off a bit.
The
decomposition-into-teams idea will return to individual associates much more
responsibility for to the nastiest problems of conflict, “discrimination,” and
even harassment. A much more pervasive problem than outright discrimination
today is the strain and conflict the Darwinian nature of today’s career
marketplace (for conventionally managed companies) causes for families with
children. Much more than gays, they really feel “discriminated” against.
Individuals, rather than government and even corporate employers, ought to work
these problems out themselves.
Infrequently,
commentators have even suggested bringing back the “family wage,” that is,
“paying more to a family breadwinner, in recognition that he or she has responsibilities
a single worker is less likely to have.”[142] In earlier times, businesses tended to regard
their workers’ children as future community resources (and perhaps labor) than
as burdens. Until the 1960’s, there
used to be an unwritten understanding that businesses would not employ women
whose husbands were already gainfully employed, at least after the first child
was born. As women (somewhat with the
aid of Civil Rights laws but more because of a broadening of our ideas about
gender roles) have starred in the corporate world, and as a large number of
single adults (obviously gays and lesbians) take increasing responsibility, the
total pool of people competing for the “good” jobs has increased. They have,
arguably, bid up the cost of living (especially housing, which has become
increasingly speculative and unstable) for all. So a few commentators like
Henry Hyde want government at least to permit employers to pay intentionally
and differentially based on family status (even beyond what happens now with
health benefits); perhaps, instead, more time-off benefits or relief from on-call duties would
be offered to (married) parents of young children. In a competitive climate,
few employers, it would seem, could really afford to do this. Conceivably,
since they keep salaries secret, some employers might find that single people
will do the same job for less. William Tucker has even suggested that the
family differential (like paid
maternity or paternity leave) could be mandatory, but this would probably just
result in discrimination against “straights.”[143]
Family wage proponents suggest that female breadwinners and singles (even gays)
would be treated equitably, but it is hard to believe that a re-invented family
wage “culture” would not intentionally favor single-earner families headed by
men, as in the “good old days.” Family
wage advocates often neglect to mention that employers already do generally
spend more on benefits for families than for singles, and are permitted to
provide paid leave for family illness or childbirth. (The Family and Medical
Leave Act (FMLA) mandates only unpaid leave.)
An offshoot of the “family wage” idea, already legal and sometimes done
in progressive organizations, is paid time-off for volunteer work actually
engaging the needs of others; why not extend this to family?
Employers
may already provide paid leave for childbirth or major family illnesses; this
is not considered part of basic wage in administrative law. A minority of
companies already do this. Many companies provide a modest subsidy for daycare,
or at least bend over backwards to arrange flexible work hours and job sharing
to help associates with dependents.
Respected media sources give differing slants on these practices, such
as whether they are “fair” to childless or single workers. Some try to make up to single workers by
providing a lifetime slush fund of corporate benefits that can be used for any
reasonable purpose, such as advanced degrees.[144]
“Equal pay for equal work,” a mantra in gay workplace activism, seems hardly to
be universally practiced or even desired.
A more
subtle source of workplace conflict comes from the unpaid overtime and on-call
time often required unofficially.[145] Meredith Bagby
supports my ad hoc suppositions with some stats: the average working mom spends
45 hours a week with her family and 36 hours working; the average dad spend 62
hours a week at work (often with more than one job) and 20 hours with his
family.[146]
I have known programmers who, wishing to be sole breadwinners, moonlight at
local retail stores or auto dealers. [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.] Economic pressure and its
effect on children is certainly going to increase pressure on employers to
assist associates with additional paid benefits. Let’s hope that government
stays out of this so that employers who chose to prefer employees with ‘family
values” will feel free to level with all employees.
Teamwork
is undermined by “competition” among employees and the belief that taking
advantage of fringe or time-off benefits could jeopardize one’s job in a
downsizing environment. It may then be undermined further by the venting in the
workplace of political or religious beliefs, some of which can sound coercive.
Progressive companies are really trying to deal with this issue with
family-friendly personnel policies, but still may be met with disbelief when
they downsize. Companies may find themselves imposing “don’t tell” rules (with
regard to any personal information) to avoid distractions among associates.
As
astronaut on a voyage to Mars would have to put his entire being into his job
for at least two years. Companies,
although not wanting to hamstring or offend associates after an era of
downsizings, now need to pay conscious heed to demands of total dedication of
associates to some of their jobs and the conflicts this can cause with both
family life and other outside, expressive or political interests. In the long
run, family conflicts (or demands by volunteer work) are more amenable to
flexible solutions than are conflicts from individual efforts, brought about
partly by the lack of intimate life, like mine. The demands of career at higher
income levels have, over the years, tended to discourage commitment to social
activism that seems essential to advocate social justice, even for individuals.
The
self-managed, separately budgeted and capitalized team could provide a
decentralized, apolitical solution to these problems. Teams could provide peer
performance reviews and reallocate compensation or bonuses, even time off (a
kind of “leave banking”) without corporate or government politics. In such an
environment, personal openness (including “coming out”) among associates is
important to make the teams work. Harman International’s cooperative venture
with its employees, Off Line Enterprises, provides a good example of the
direction team concepts can go.[147]
All of
this requires a certain element of personal honor and candor among work teams,
a cohesion best known today in the military or in marketing organizations. The work-ethic changes somewhat, as associates
have to respond more quickly to internal customer demands and may not always
enjoy as much independence in setting their own paces. The decomposition of the workplace into
small, somewhat self-sufficient units, totally changes the debate about “discrimination.”
Associates will have to overcome the urge to compete with each other as
individuals, and turn to working together for their common interests, getting
results they can see and control. Wall Street gets nervous when conventionally
defined unemployment goes down (as expressed in the old-fashioned tradeoff
between inflation and employment) but wants to see people employed in doing
things where they can make a difference.
---
I have
certainly known discrimination, although I have spent much of my career running
from it. I eschew management promotions because I don’t want to manage people
who know more than I do. Is that the real reason? No, managing people doesn’t
represent an accomplishment for me. Writing this does.
I lost my
first job after a year, and my lack of compliance with the
courtship-and-marriage expectations of men (even at 27) certainly played a
part. In fact, the company, when it sent us on the road on training
assignments, intentionally paid married employees more than single for living
expenses (I had to stay in a room in a private home), and actually made some
trainees double and triple up in motel rooms during programming school. Another
job led to a transfer because I didn’t show a “marketing profile.” A neighbor
in human resources in a major oil company told me, in 1970, that his company
would be most unwilling to hire unmarried men past their late twenties. Novelist John Grisham starts The Firm
with mention of this personnel preference at least with some law firms. Most telling is that I have evaded security
clearances all my life because I feared complications from my personal history.
In 1988, while job hunting in Dallas, I found no one would look at a
middle-aged never-married male, who might be an AIDS risk; I found the attitude
on the East Coast much better.
Conditions,
both in civilian government and most private employment, at least with larger
employers, are much better than when my career started. Two decades ago, only
“married men” were considered as serious candidates for executive jobs;
Motel-6, for example, offered motel management positions to married couples
only. Relatively few states (though numerous jurisdictions) ban discrimination,
but many employers voluntarily regard sexual orientation as a “diversity factor.”
Still, a number of egregious cases continue to surface. Three, in particular, should be noted.
In 1991,
Cracker Barrel Old Country Stores (a family restaurant and gift shop chain with
garish, skyscraper sign poles along many interstate highways, especially in the
south), without formal announcement, began discharging employees “whose sexual
preferences fail to demonstrate normal heterosexual values which have been the
foundation of families in our society.”[148] The company actually fired people for not
dating and not getting married, and curiously went to the trouble to label
“normal” people as “heterosexual.” In its personnel records, it would write
brazenly “employee is gay.” The management actually thought it could impress
the interstate-highway public by announcing no gays were allowed (perhaps it
was making a cheap appeal to AIDS phobia). The company claims to have rescinded
the policy; contacts within the company tell me gay employees are still
regularly fired at some of the restaurants.
Very recently, I enjoyed the country cooking
at a Roanoke, Va. Cracker Barrel restaurant, and noticed the clientele
comprised almost entirely young families with small children. The place was
busy; as a man eating alone, I had to wait to be seated and service for me was
slow. The chain obviously believes it
should employ only waitpersons, say, who like to humor kids. In its own narrow
view of things, Cracker Barrel may have a point. It doesn’t need my business
(or help) again.
In 1990,
entrepreneur Don DeMuth fired (“for just cause”)
accountant Dan Miller for violating a bizarre employment contract clause
prohibiting “homosexuality,”[149] after Miller had spoken out against anti-gay
violence in an impromptu speech on Harrisburg, Pa. television. (Miller had
never actually stated publicly that he is gay).[150] DeMuth subsequently
sued (successfully) Miller for violating a non-compete agreement when Miller
started his own business and begun taking away DeMuth’s
rather open-minded yet mainstream clients, who apparently had not been
impressed by DeMuth’s homophobia.[151]
DeMuth’s attorneys claimed that Miller’s publicizing
a controversial issue “reflected poorly on the company.”[152]
Yup - some “good old boy” employers (usually smaller ones) still think that
way! DeMuth and Miller had often shared hotel rooms
when they traveled on business, to save money.
In 1991,
attorney Robin Shahar lost her job offer with the
Atlanta District Attorney’s office, after she announced a public commitment
ceremony with her female partner. The DA argued that the publicity over her
“wedding” would undermine her credibility with juries as a prosecutor,
especially since she presumably violated state sodomy laws. She eventually
prevailed in federal court[153]
and then, in 1997, lost before an en banc
appeals court on arguments resembling the military’s DADT and the compromise of
her ability to enforce the state sodomy law.
A lawyer
in Cincinnati was fired after naming his same-sex partner on a firm-provided
life insurance policy (a practice even allowed in the military under “don’t
ask, don’t tell”) and for doing pro bono work for opponents of Cincinnati’s
anti-gay Amendment 3.[154]
In 1992, a Colorado home for orphaned girls first explicitly banned lesbians,
and then had to prohibit itself from employing gay men to comply with “sex
discrimination” laws!
Of course, everyone knows the problems in
such areas as the FBI,[155] police departments (the Fairfax County, Va.
and Dallas, Texas police departments, for example, used to give lie detector
tests to “find out” homosexual applicants),[156]
and teachers. In 1978, California voters turned down an referendum (the “Briggs
Initiative”) banning gays from teaching.[157] In Maryland, in 1972, a teacher lost his job for
failing to mention his membership in on-campus gay organizations, and the
school board affirmed the teacher would not have been hired had he reported all
his personal associations. In 1993,
Rodney Wilson was reprimanded for revealing his own homosexuality to his high
school history students when he was teaching them about the Holocaust, and
another teacher in New Hampshire was fired for allowing homosexual materials in
a literature class. Would a teacher get fired for discussing Steffan’s book? Senator Don Nickles
stated, in the ENDA (below) debates, the Boy Scouts will not even accept gays
as employees, let alone scoutmasters.[158]
I have
personally known several people fired for being gay. In 1975, a friend I had
made at the Ninth Street Center was laid off from a teaching position in a
Brooklyn private school because he was still “single” and the owner wanted to
save the jobs of men supporting families. In 1978, a bartender at the Greenwich
Village bar Boots and Saddle told me, after we had met playing on the bar’s
softball team and enjoyed talking about the Yankees’s
sensational pennant run that year, that he had been fired from a diamond
retailer and effectively blacklisted when private investigators found out he
was gay. I had already thought that the most unscrupulous gumshoe firms (like Fidelifacts) had gone out of business.[159] A young realtor would be fired in Dallas in
1982 because of “lifestyle” (although most real estate agencies actually saw
gay agents as able to tap a potential market; I never heard about
discrimination in the actual mortgage loan processing). A young nurse would be
fired from a small hospital in Virginia for being seen reading The Washington Blade in the employee
cafeteria. In the 1980’s, a male
grade-school teacher who came to Evangelicals’ Concerned gatherings in Texas
would timidly excuse himself for having “gay friends.” In 1971, a librarian working at the
University of Minnesota would be fired when he applied for a “marriage” license
with his lover,[160]
and the employer complained (and court ratified) that it was not so much his
homosexuality but his public “gay activism” that led to his firing.
In 1996, a
teacher in Virginia would find his license jeopardized when he was found to
have posed for gay porno videos on this own time. The teacher apparently is
shown engaging in acts that are crimes in many states (but not where the video
was shot). One may disapprove of his conduct as a “role model” but then other
people might find my editing a gay political journal “immoral.”
In 1973,
the federal Civil Service Commission adopted policies forbidding the dismissal
or exclusion of employees for homosexual conduct unrelated to work. In 1978,
the Civil Service Reform Act prohibited federal agencies from discriminating on
the basis of non job-related conduct.[161]
These protections did not apply to security clearances. Until the early 1970’s,
it was not unusual for states to deny occupational licenses based on “moral
turpitude.” Today, young lawyers (such
as in Washington. D.C.’s “Gaylaw” organization) tell
me that the environment in many private law firms (when compared, say, to
computer companies) is still rather unpleasant for unmarried adults and these
lawyers tell me they often prefer government employment.
On at
least three occasions since 1975, I have heard, while driving rental cars
through rural areas in western or southern states, radio ads from companies
bragging that they employ only “Christians.” I don’t think they would want
When
television cameras come to gay events, there is nearly always an effort to warn
people and protect those who believe they can’t afford to be outed. It is relatively unusual today (unlike 25 years ago)
for some to be fired for being seen on television at a gay event on his own
time. Most of the time, anti-gay
discrimination in the workplace (as is other discrimination) is likely to be
subtle. A determined employer can usually find reasons to dismiss someone
through small infractions in behavior and performance. For example, a manager
at Shell Oil Company was fired after accidentally leaving safer-sex materials
in a copier machine in the workplace.
Although, outside of Cracker Barrel and DeMuth
I haven’t read of numerous recently stated “don’t ask, don’t tell” (or maybe
“do ask”) policies in the civilian private workplace, it is obvious that many
jobs involving public relations (lobbying for conservatives, for example)
expect such restraint as an unwritten policy.
All of
this brings us to the question of whether government (through additional civil
rights laws) should step in to stop anti-gay discrimination. Many
municipalities have prohibited discrimination on sexual orientation. However,
in several states, anti-gay forces have launched initiatives (sometimes at the
state constitution level) banning municipalities from protecting gays or any
other category other than those already listed in federal law. These states
include Colorado, whose notorious Amendment 2 (1992) was overturned in 1996 by
the Supreme Court.
ENDA, the
proposed Employment Non-Discrimination Act introduced in 1994 by Senator Ted
Kennedy, sounds benign enough. ENDA’s intention is to provide reasonable, if limited,
federal protections to lesbians and gay men against discrimination in the
civilian private workplace. Eleven states, the District of Columbia and about
one hundred localities have laws today which provide some protection to
homosexuals against employment or housing discrimination (covering altogether
about 25% of the country’s population). Many states and localities provide some
protection in their own government employment (not always including law
enforcement). ENDA requires no quotas or
“disparate impact” statement, exempts employers with fewer than fifteen people
(as did the 1964 Civil Rights Act), religious organizations and, of course, the
military. It requires employers to treat gay and non-gay employees equally, yet
explicitly allows employers to provide different benefits to (presumably)
legally married employees. I believe these allowable differential; benefits
would include paid time-off. More recently, liberal Republicans introduced a
“Fair Employment Act” which would bar discrimination based on any
non-job-related issues; obviously, deciding when a behavior or trait is
job-related will be a thorny and subjective issue.
Gay
activists tried unsuccessfully to attach ENDA to the Defense of Marriage Act.
This failed, but Democrats managed to get a vote on ENDA in the Senate, which
lost in September 1996, by one vote. Had one absent Senator been present, it
probably would have passed the Senate by Vice-President Gore’s tie-break vote.
The vote tended to follow party lines, with Democrats tending to favor ENDA.
With President Clinton re-elected in 1996 but a Republican House and Senate, it
seems possible but not overly likely that ENDA will pass in 1997 or 1998.[162]
Libertarianism,
in principle, would, outside of a rapidly shrinking public and government
sector, reject all anti-discrimination
laws (even for race) on the theory that property owners or investors, since
they are spending their own money, should be able to choose and retain
employees as they choose. Normally, our legal tradition recognizes that
businesses may be regulated and licensed by states, in a reasonable manner
consistent with “public policy” which includes non-discrimination. But the
libertarian movement places great confidence in the free market to discourage
discrimination. This seems much more credible today in a society where people
are much more mobile than ever before and have much more immediate access to
information. Today’s employers are much more likely to believe that
discrimination actually distracts associates from concentration on
professionalism and technical job performance.
Immediately
after ENDA’s “defeat,” GLIL issued a press release
which “praises” the Senate for its vote on ENDA. Since the Senate had
simultaneously passed DOMA, the press release offered the odd language “it
would have been nice to praise the Senate for two good decisions today.”[163]
The release quite appropriately noted that ENDA tended to insinuate that gay
people are hapless in looking out for themselves, which we know, in today’s
Darwinian economy, is far from true. It less pertinently commented that ENDA
would hurt gay businesses which could not refuse to hire non-gay people.[164] This release angered some of GLIL’s supporters, one of whom claimed it to be an “insult”
to the entire gay community and called it a symptom of “GLIL’s attitude
problem.” I thought it inappropriate to “praise” the Senate for anything, for
the Senate is hardly a libertarian body.
Nigel Ashford has advanced several arguments that laws like ENDA
actually hurt gays, for example, by discouraging some employers from hiring
open gays in the first place (where it is almost impossible to prove illegal
discrimination when there are no “quotas”) out of fear of subsequent frivolous
litigation.[165]
Of course, Ashford’s arguments can be used to attack most Civil Rights
legislation in force today.
My concern
with this issue is to stand by my principles - advancing social justice, which
today requires government withdrawal rather than activism - and yet to advance
proposals that really can be enacted. Despite the ambiguities and problems with
anti-discrimination law, the public clearly wants to retain Civil Rights
protection in many of the already defined categories (certainly race, religion,
and maybe gender and age). A substantial portion of the voting public seems
willing to give gays certain protections, at least with large civilian employers. Dole, in the 1996 presidential debates,
affirmed he thought there should be no discrimination for “lifestyles” but
waffled on ENDA because it would create “special rights?” Does he mean special
exemptions from the prerogatives of property owners, or does he imply gays
already have equal rights if they will go straight?
Virginia
Senator John Warner wrote to me, “as more groups are granted special
protection, the government sends an increasingly implied message that
discrimination against other groups is acceptable” and expressed concern that
the bill, despite its careful wording, would still cause employers to believe
they have to practice affirmative-action-style “defensive medicine” (such as
keeping statistics on sexual orientation to meet possible future discrimination
charges) that would actually invade the personal privacy of employees. Other
conservatives’ arguments were far from kind. In congressional debates, Orin
Hatch reiterated the concern that the bill does allow statistical adjudications;
Hatch, Nickles, and Ashcroft all made comments
suggesting that some employment invokes more than just “doing a job” - loyalty
to an employer’s religious, moral, or political convictions and the ability to
project that image to customers (or perhaps schoolchildren) is indeed part of
the consideration for which one is paid! Ashcroft argued that, with ENDA, the
federal government is sending the wrong message to vulnerable, fence-sitting
young men. Hatch complained that, on
paper, the bill does not exempt the National Guard and hinted that police
departments and other “para-military” law enforcement
bodies, really should exclude people based on homosexual conduct (or presumed
sodomy law violations).[166] Nickles also made
the amusing observation that bisexuals are, by definition, “promiscuous,” and also suggested that sales or marketing
work requires a social cohesion with customers that would often make
homosexuals (and perhaps unmarried adults) inappropriate associates. Ashcroft
criticized the nebulous distinction between “for profit” and “non-profit”
businesses in some gay non-discrimination local ordinances.
ENDA
certainly deals in large part with personal (if largely hidden) behavior, even
if that behavior is biologically mediated. But Civil Rights laws already put
other behaviors out of employers’ and landlords’ reach. These include religious
customs and having children. If some behaviors are protected, but private gay
sexual behavior is not, gays may indeed be discriminated against
“accidentally.” In the 1970’s, I worked with Orthodox Jews who could never work
on Friday nights or Saturdays. I was asked to cover for them, and never asked
for consideration for my own needs. In practice this did not affect my life,
but it obviously could have.
As an individual
in the workplace, I can say how I feel. If a small employer with limited
resources expects me to give up my vacation and work overtime (without any more
compensation since I am exempt) because a colleague’s kids are sick, it seems
perfectly right that we should agree among ourselves, when I go to work there,
that some associates’ personal needs are more pressing then others. Why should
the government have anything to do with this? If a small employer feels my
demeanor or outside interests (insofar as they gradually become known publicly)
undermines its business, it seems perfectly appropriate to ask me to leave - as
long as I knew the rules when I joined the company. Making the totality of me
valuable enough “at market” to support my own life is my own responsibility,
not government’s or society’s. Should I work for Boy Scouts of America, or
Regency University, even as a technician? Not if I’m salaried and the
semi-permanence of the arrangement implies I owe them some political loyalty.
As desirable as my “coming out” may seem to enlighten (however gradually)
employers like this, I don’t want government forcing these employers to
accommodate me; I think my longer run best interests are served by a climate of
opportunity where all employers must compete for the best services from the
workforce, and where associates have customers whom they really want to serve.
The
“behavior” of large organizations, especially in the executive ranks, seems to
have improved markedly since 1987, when a Wall
Street Journal survey found that two thirds were unwilling to give an
executive job to an openly gay person A 1992 survey of 1,400 gay men and
lesbians in Philadelphia showed 76% of men and 81% of women wouldn’t “tell” at
work.[167]
On
The
practical problem, whether a bill like ENDA gets passed, is that most new jobs
are with smaller employers (often enough with fewer than fifteen employees -
the floor associated with the Civil Rights Act of 1964), who may sometimes
believe they are vulnerable to the prejudices of their customers. Of course, we
know from cases like DeMuth v. Miller that these perceptions are
often unfounded. If ENDA passed, the
putatively few employers who might want to improve benefits differentially for
parents (say even with a parent’s day off) might be prohibited from doing so,
unless gay marriage and parenting are more favorably resolved. Another issue
comes from the practice (now somewhat abating) of some companies to replace
exempt workers with freelancers, although such companies could be required to
carry over anti-discrimination policies to contractors. Still, it is fair to ask, if government is
going out on a limb to protect some socially desirable behaviors, such as
parenthood and practicing religious faith, then should it not give some
reasonable protection to gays to restore some “fairness?” Government seems to be practicing bulimia.
Elizabeth
Birch of Human Rights Campaign seems to defend the precepts of ENDA
effectively.[171] The bill would provide more exemptions to
religious organizations than for already established Civil Rights
categories; it would not excuse
disruptive conduct. It would stop employers from bowing to the prejudices they
perceive (often incorrectly) in their customer bases to gain an imaginary
“competitive advantage.” It apparently has not caused a flood of litigation in
the nine states that have it. It would say, as public policy, one employer may
not gain “artificial” competitive advantage over another by “giving in” to
prejudice.
The
problem, of course, is that government is disingenuous if it now pretends to
declare all sexual orientations or “lifestyles” equal. How could it credibly
subsidize “traditional family” at the expense to singles (including most gays)
and turn around and say we’re all equal? In my non-college algebra class, this
would have been mathematical nonsense. We arrive at contradiction, and prove
government can’t do this; it can only pretend. The only way to make everybody
equal is to get out altogether.
Furthermore,
avoiding “discrimination” on lifestyle factors is bound to invoke subjective
judgments. Since no reasonable person (I hope) wants to go back to the days
when want ads could (and did) say “no gays,” one is led to consider much more a
restrictive bill that just, in law, prohibits the most flagrant abuses of the
Cracker Barrels or DeMuths. Fifteen years ago, most
companies in Texas made job applicants sign a release permitting the employer
to investigate the applicant’s “mode of living.” Except for drug tests, this
was almost never done, even by the credit reporting company that employed me
for six years in Dallas and which “tolerated” a large number of gay employees
since its data center was located in Dallas’s Oak Lawn area. However, in 1986,
an aviation liability insurance company, using various investigative services,
pried into the lifestyles of some of the victims of the Delta Airlines plane
crash and tried to reduce the death claim of victim Scott Ageloff
on the theory that, since he was gay, his life was worth less because he was
“likely” to get AIDS.[172]
Due to some rather bizarre rumors concerning the takeover of my employer, this
episode actually figured into a personal decision to leave Dallas.
I could
start by proposing that employers may never ask sexual orientation and (except
for benefits enrollment) marital status or family associations. What if an
employer believes it needs to have its Vice-President of marketing “normally”
married so that the spouse can help with “getting business?” This doesn’t seem
to be a problem for employers in the nine states with ENDA-like protections
already. A more subtle problem, is that “don’t ask” can’t always work. I was
actually ”asked” under oath in a deposition for a lawsuit against an employer
for (alleged, not-gay-associated) discrimination. I have actually been outed twice in court! I took a certain pride in “telling”
in both instances, because my homosexuality definitely gave me a obviously
special perspectives and unusual credibility. Were I a military reservist and
had the military found out (it would have to go fishing), I still could be
discharged for telling the truth under oath! A “don’t ask” law would still have
to permit “asking” in court proceedings.
I have also been approached (by peers) to give blood, and have been
embarrassed by not offering an explanation.[173]
A sensible
and readily enforceable rule would be that apparent sexual orientation could
never be legitimate grounds for dismissal for just cause. Then an employer like
DeMuth could not enforce a post employment
non-compete agreement - in that case, a good incentive not to dismiss at all.
It could also not be allowed as the only “reason” for “at will” termination,[174]
if sufficient testimony could show that sexual orientation had provided the
employer’s only motive. The law could state specifically that an open or public
statement of sexual orientation could never construed by an employer as
“conflict of interest” or “breach of business loyalty,” even if the employee
had a culturally unusual customer base. (We all know, openness about homosexual
orientation merges with political speech and implies a criticism of religious
fundamentalists and others culturally disdainful of homosexual values.) A sizable employer could not make up and
appeal to a theory that only men with “families” are to be trusted. But such a
law should not interfere at all with an employer’s control of conduct or speech
in the workplace, or even outside the workplace insofar as it is intended to be
public.
Even
without explicit legal protections, gay workers may have considerable practical
recourse. Intrusions by an employer into an associate’s private life may invoke
the tort of invasion of privacy (even in cases where the employee appears
publicly at a gay event) or, conceivably, sexual harassment.[175]
Sometimes, employees have won invasion of privacy lawsuits when their private
behavior broke no laws. This obviously argues for elimination of sodomy laws;
but remember, in a “libertarian” world, employers and property owners are no
longer bound by criminal or civil statutes in regulation behavior of
associates, tenants, and so on.
The
protection of gay teachers needs special attention. School boards are public
employers and should not be allowed to discriminate (private schools, we hope,
ultimately find an incentive for justice in the market). One friend who taught grade school in Canada
told me his students readily accepted the idea of his “special friend” without
any sense of intimidation. If a school board feels it must prohibit a teacher
from telling students about her homosexuality, or to appear in the public media
at gay events, then it should play fair and prohibit all its teachers from appearing
or writing in public without permission. In February 1996, after Salt Lake
City, Utah had closed down all student extracurricular activities to legally
dissolve a gay student club, the Utah legislature passed a law that bars
teachers from “promoting illegal conduct” and “from engaging in any activity in
their private lives that would undermine the morals of children or public
confidence in schools and create a significant disturbance in the schools.”[176] This school system had effectively
paraphrased “don’t ask, don’t tell, don’t pursue.”
But whatever ENDA-like law is eventually
passed, it does not solve the issue of “equal rights for gays,” because it
glosses over deeper, even psychological issues, because different lifestyles
can profoundly affect work, benefits, and compensation needs, and because some
aspects of the employment experience still are personal. People will still brag
about the families on resumes, and physicians’ “First Call” status’s will still
give prospective patients a doctor’s marital status and number of children.[177] Straight people routinely meet future spouses
in the workplace; this is a dangerous gambit for most gays even in companies
with anti-discrimination clauses.
Stopping unjust discrimination, more than any other social issue,
demands an understanding of the interplay of moral, psychological, legal, and
political elements; it requires us to face issues in a most personal way. Finally, even with anti-discrimination laws
on the books, suing employers is no way to build a career.
The
easiest interpretation of bills like ENDA is that it should break the glass
ceilings and straw dogs that may lead gay men and lesbians to believe they
shouldn’t fight hard for the promotions and advancements that others receive
because gays wouldn’t “deserve” them. Besides assuming an oversimplified view
of the workplace, this view misses another point. One should not have to
“advance” through conventional channels in order to enjoy thorough self-respect
and recognition from others, when one has unearthed truth or figured out a way
to deliver truth to others “where they are.” Do I want to be groomed for
“management” in a conventional corporate bureaucracy and then, as a gay man,
have to weigh the family and personal problems of people who formally report to
me, of people whom I hire and fire? No way! ENDA would, in the view of some,
however, be a valuable moral statement that discrimination based on private
lifestyle factors or immutable emotional constitution is wrong. That’s morality
again! We will always disagree on this when dealing with groups of people.
One could
perform a similar analysis with other gay discrimination scenarios. For
example, with housing, since commercial apartments now may not refuse to rent
to families with children, it seems “equitable” if the law prevents them from
posting “no gays,” as they had often done until about the time of Stonewall.[178] But government should not get further into
the business of telling the individual homeowner to whom he has to rent (such as
an unmarried couple). Regulation of property use can take a mean turnabout, as
when the lesbians who organized Camp Sister Spirit in Mississippi eventually
were forced to abandon their project; zoning laws have been used to stop the
founding of an AIDS hospice in Richmond, Va.[179]
and a Metropolitan Community Church in South Carolina.
It’s
possible to imagine employers wanting to impose their ideas of “moral” behavior
in other areas. A few have dismissed employees who smoke, even off the job (and
these employers have lost in court). Would an employer refuse to hire a woman
who had ever had an abortion, or anyone who had worked for a tobacco company?
Discrimination
law, as we have gotten used to it, may become less effective - even in less
“controversial” areas like race and gender - as the workplace becomes more entrepreneurial
and decentralized. But we should recognize that government has created much of
the discrimination it must now protect us from. We can look back to the Dred Scott decision, the Jim Crow (segregation) laws, and
more obscure measures such as the Chinese Exclusion Act of 1882, or attempts by
government in the 19th Century to prevent native Americans from practicing
their own language and culture, or Roosevelt’s internment of Japanese-Americans
during World War II, as well as the racial segregation of the military until
1948 and government experiments with the health of African-Americans (the
Tuskegee studies involving watching untreated syphilis). In 1886, the Supreme Court had even ratified
the “one drop” rule to define the “negro.” Even today, police “profiling” of
suspected “drug couriers” leads to selective harassment against
African-Americans.[180]
----
With government’s spinning off its morality
business (and with politicians no longer available to be “bought” by creating
imaginary enemies), it’s unlikely that popular culture would, on its own, again
try to blacklist and exclude gays (or, say, any religious group) from
significant economic sectors. It is
important to make the rules clear in advance, however, to stick to them, and
for people to understand the risks (of “unjust” accusations), commitments, and
limitations inherent in many kinds of careers. We should understand the philistine mentality
of overusing government to enforce “fairness” in the workplace; the end result
is often that people really don’t learn how their own personal choices and
values affect others. There is no “constitutional right” to a high income; just
a right to expect everyone to play by a consistent set of rules. The moral principles of integrity and
commitment would suggest that accomplishment and rewards in the workplace will
ultimately link back to serving the real needs of others.
“Equal Rights for Gays” is a Special Case
of Human Rights
The
civilian workplace, the military, sports, art, recreation, volunteer
organizations - and most of all the family - all of these are places where
people “perform,” develop an importance to others, and force recognition of
“who they are.” Gay people have, in all of these places gained public attention
and credibility that would have seemed unimaginable even a decade ago. The
progression has indeed progressed from respect for “privacy” to “toleration”
and finally just sometimes to “acceptance”; yet, the debacle with the military
(with its threat of forced “outings”) could send us back to legally-codified
third-class status, with no right to “pass Go” ever again.
“Gay
rights” should be developed primarily in view of individual rights and
responsibilities. The legitimate end
point of a “gay rights” movement ought to be that society legally recognizes
the right of any adult to “private” intimate association with a chosen,
consenting adult “significant other.” This sounds reasonable enough, if it
means what happens in the bedroom isn’t the government’s business. But it also
means that gay people, as individuals, need to be respected for their ability
to form morally legitimate adult partnerships¾and even for the unusual
selectivity they sometimes show in picking long-term partners¾and that the legal and cultural status of
these relationships needs to be addressed. It also means that the economic and
legal markets - the workplace, rental and real estate markets (and with some
special limits, the military) - should not discriminate against people on the
basis of who they choose as significant others. At a personal level, it conveys
a wish that others should respect the legitimacy of what makes one tick, what
turns one on.
This may
sound like an argument that can be won through traditional “liberal” politics,
without proposing concurrently the de-inventing of most of the accepted
functions of government. Now, as we see in much conservative thought about the
decline of marriage, we still carry around a heavy burden of moral
collectivism. That is, people go wrong and behave destructively because of
social forces (especially their own family backgrounds) completely beyond their
control; therefore, society (and government) must define clear standards of
right and wrong and actively promote behavior (stable marriage) that gives the
less fortunate a real chance. In this moral climate, the usual liberal
arguments for “equal rights for gays” are arguable but difficult to win.
The modern
“liberal” argument emphasizes the immutability of sexual orientation and the
historical mistreatment of gays as a reason to single out gays for specific
protections and heightened scrutiny from the courts. The activist’s dream has
been to get homosexuals added to the list of “suspect classes” associated with
Civil Rights laws. Homosexuality indeed
may not be chosen, and it may indeed, according to the latest research, have a
largely biological, even genetic origin.[181]
But this does not mean that homosexuals should not be held accountable for
their behaviors if indeed these actions eventually become harmful to others;
otherwise we are simply conferring homosexuals the status of alcoholics.
Liberals have often expected homosexuals to join forces “in solidarity” with
other “oppressed” minority groups such as women and “people of color.” I could claim myself to really experience
minority status because, perhaps like a handicapped person, I am a minority
member in my own original family and among most of my peers; but I hardly want
to be seen as “disabled.” I have
attended gay social groups formed to establish “mainstreamer” identifications. If “blamelessness”[182]
were all there were to homosexuality, I would have deserted it and become
“ex-gay” years ago (at least to the point of functioning as a straight “family
man” because there would be no really acceptable alternative); a possible
inference of all of these “immutability” arguments would be that, as behavioral
inclination, homosexuality really does raise troubling questions about the
moral aspects of our expressive drives.[183] Why do we focus on “excusing” our behaviors?
We could instead talk about our “natural” rights (and derivative
responsibilities) to experience our own personal sexualities - both at a
physical level in terms of how we handle our own bodies, and at a psychological
level in the way our behavior and values intersect. Sexual orientation implies
much more profound influences on behavior and personal values than does race;
since it pervades what other things one will find important in life, it is more
like religion, except that, unlike most traditional faiths, it places
tremendous emphasis on the individual’s deciding on his own values, of what
will be important in other people.
A second
problem is that homosexual acts and values do have a double-edged effect on the
public at large. In the mid-1980’s, we
witnessed a debacle that nearly legitimized the notion that male homosexuality
could wipe out all life on the planet.[184]
Cooler heads (and science - Wissenschaft) have
refuted this, and today we instead would find in sexually transmitted diseases
a lesson that would urge rewarding of stable monogamous relationships for gays
and a warning that careless promiscuity can kill anyone. The “values” question is tougher. The
old-fashioned paradigm for “family values” - however inequitable, unfair, and
flawed - impressed young men with the apparent simplicity of its moral
teachings. If young men need clear prospective role models to teach (or induce)
them to perform as husbands and fathers, successful gays can be perceived as a
distraction. Gay men, in particular, come across to some people as “too good”
or too diffident to be bothered with parenthood, or with any drives other than
edifying themselves. This gets expressed in the “reproduce” (or replicate) or
“recruit” slogans. This kind of collectivist argument finds a home with people
who really don’t have faith in human nature! But if men really can’t be trusted
to answer for themselves and if society (outside of family) must take care of
them when they are sick or disabled, society, according to some arguments, may
benefit from channeling of their sexual drives into a specific, narrow kind of
committed heterosexuality and from the blocking of any contrary information
from the culture.
Of course,
it’s good to force “straight” society to face not just its
quasi-rationalizations for keeping queers in the closet, but also the deeper
roots of “homo-hatred.” These fears do
seem to begin with sexual insecurity - the possibility of not getting it up -
and the requirement that men initiate
and perform, almost to self-effacement. For straight men will, like kids (or cats)
about to be dropped for the first time into a swimming pool, resist being
reminded of what they have been forced to repress, a deeper, more caring
capacity in men and well as women. They resent being reminded that society
demands their fungibility in return for a place at
the table. They resent seeing others
taking psychological, expressive and imaginative liberties they gave up, and
politicians know it. As some of the German people, influenced by Hitler’s
propaganda, saw the Jews in the 1930’s, they resent men who succeed in life
without the sacrifice inherent in maleness.
Soon, the hatred feeds on itself. Sometimes, it comes across with petty
rationalizations, like Tim La Haye’s depiction of
male homosexuality as part of the “melancholic” (after the Four Temperaments)
personality.[185]
On balance, the wisdom and knowledge depth that comes from a homosexual’s
“free” double-life is weighed against the beneficial process of
commitment.
A
pro-family initiative that respects equal rights for gays is more subtle. It
takes “morality” beyond simply answering for immediate “behavior”; it confronts
the individual with the limits he faces until he can center much of his
experience on meeting the needs of others, first in his own family and then in
a larger community. Just across the street from this altruism is
homosexuality’s cutting edge, at least for men: its tendency, through a
juvenile narcissism, is to feed on homosocial bonds
that men form in their pioneering and soldiering and blow it up into power
struggles that heterosexual men will fight later as they separate into their
own nuclear families, to focus on the icon, the idea of Mr. Perfection, the
alpha male of the timber wolf pack. Homosexual men, after all, can turn this
yang in to a certain self-indulgence; they can turn their private sexual values
into a source of secret temple “power.”
In fact, the “cultural war” described by the religious right (and so
tempting as campaign fodder for politicians)
seems to cleave right along this line of self-centeredness, upon which
the “morality” of the homosexual revolution ultimately stands or falls; it’s
the “selfishness” of gays and yuppies and corporate executives, versus
“families” (as if family were indeed a social artifact imposed on individuals).
When I listen to all to Lon Sheldon-style anti-gay rhetoric, I react: straight
men, you’ve really given something up just to remain loyal to your own
genes.
To take
the “gay problem” beyond the trite confines of communal welfare, we have
proposed an approach that puts the responsibility for reconciliation of the
deeper, psychological aspects of moral issues back upon individuals, their
families, churches, and private associations (personal or economic), and
removes them from “statecraft.” Following the non-political “Area of Mutual
Agreement,” we agree to disagree on the deepest questions involving the ethical
appropriation of psychological surplus, but to cooperate economically and
culturally on matters of mutual adaptive interest. Should government be able to
spend my tax dollars telling me how I “ought” to live, just because others are
not readily inclined to answer for themselves? This cultural divide comes down
two things: resentment over government’s taking money away from “me” to give to
those others have decided are more “entitled”; and, simultaneously, a suspicion
that we fall far short of the generosity and committed psychological focus we
need to develop if we are to be trusted with the freedom we sometimes seem so
afraid to claim for ourselves.
For the
well-being of gays, Andrew Sullivan’s simple model “politics of
homosexuality” seems here an apt fit,
“That public (as opposed to private)
discrimination against homosexuals be ended,” that people be treated the same
with respect to rights and responsibilities regardless of their underlying
emotional makeup, “and that is all.”[186] While the collectivist vision of
legally-driven “gay rights” has worked reasonably well in demographically
homogeneous, and prosperous northern European countries, Sullivan’s simple
remedy makes sense in our socially more conservative melting pot. His two most important measures are ending
the ban against gays in the military, and recognizing gay marriage with the
same rules as for straights. Sullivan apparently believes that once government
declares gays and lesbians to be “morally equal,” most people will choose not
to discriminate against gays. But a libertarian would say most rational people
won’t discriminate simply because they
can’t afford to. Many better-off gays resent the idea of being presented as helpless
victims - “except of the government” - and see this kind of portrayal as bait
for anti-gay backlashes, “such as Colorado’s Amendment 2, to promote negative
stereotypes, and to solidify anger and fear among religious groups and
mainstream families that are offended.”[187] The broad aim of public policy should be that
gays are not excluded as individuals from any areas of mainstream society just
because of false associations. Since sexual orientation, however immutable,
does induce its own special self-serving motivations and behaviors, there is no
way government can make gays “equal” in all cultural affairs. Government, in
fact, given the best intentions, still can’t realistically treat gays as
absolutely “equal” in special circumstances such as the military or adoption;
it can stop hunting them down and shutting or kicking them out. But “equal
rights for gays” would, beyond the right to equal “participation” in social
institutions, also imply the equal right to be publicly open in all possible
circumstances. This gets tough and undoable. Gays can achieve parity by
excelling as individuals (which government must allow all citizens to do), not
by prima facie government actions
giving them equal standing as a group at the expense of community “order and
discipline.” Being gay has its own
inherent psychological advantages; it’s a bit like opening a chess game playing
Black (no pun) with a Sicilian Defense, when, if Black has equalized, then
Black already stands better. Even so, a very recent (July 10, 1996) NBC “Dateline” poll of 503 people showed
that 62% favor equal rights for gays, 11% are unsure, and 27% believe gays are
second-class citizens.
[Let’s
reiterate. If I derive my sense of identity primarily from social, communal and
familial association-relationships!-and I’m homosexual, I probably am
“inferior” but only by derivation. I can overcome this with my own efforts and
accomplishments.]
Andrew
Sullivan’s “simple” equality paradigm might be sellable to mainstream America
if parenting and other caretaking is first factored out. Most people probably
want society (but not necessarily through government) to give some at least
modest advantages or “preferences” to parents or to those taking care of
others. Given this fact, equitable (if
not equal) treatment for gays and lesbians would depend on the legitimate
possibility that they can serve as parents (as well as soldiers) when
individually qualified. People will be
judged completely on their individual merit and on the totality of their
lives. If the state legislatures or
courts (or Congress) cut gays out of custody, adoption or (for women)
artificial insemination completely - and if government really tries again to
completely exclude gays from the military and perhaps other critical security
occupations - the notion that the gay lifestyle is inherently “selfish” or
parasitic comes across much more visibly. But, turned around, the notion that
all committed relationships between two (not more) competent adults should be
regarded equally becomes credible.
In the past, I tended to cop out on this
“equality” notion, since I believed I really had more “freedom” than did
married “straight” people. “Straights” might recoil at this arrogant notion,
since it would remind them of what they have “given up” - and then some of them just get angry at
even being reminded that we gays exist, let alone claim some kind of parity, if
not real equality, through our freedom. This anger and defensive hatred,
however, seems especially aggravated by the fact the government (or other large
institutions with great practical authority) is doing the reminding, by telling
people how to live their family lives and, in the recent past at least, by
emphasizing fidelity to gender performance and associated obligations; left to
themselves, people will quickly discover tolerance as part of their
self-interest. I thought of the “gay
world” as adding another dimension, like the imaginary component of a complex
number. But, as I have noted, parenting is another dimensional experience that
I have missed, and I still take responsibility for that.
Gay issues
have certainly jumped back and forth, like a sine wave, as a forefront
component of the more general question of individual rights. My attention has
varied from oil shocks and Islamic fundamentalism, to AIDS, back to corporate
downsizings and Saddam Hussein, back to the military gay ban, the same-sex
marriage debate, and the varied postures of the “religious right.” Originally,
most of these matters affected mainly my potential range of personal choices;
but gradually gay issues have, after all, given me a podium to address the
larger questions, like the practical limits of human individuality.
Homosexuality has come to sound like a “we” and “them” issue; I’m part of the
“them” who partake of more freedom and mental self-governance than was thought
permissible in moral people. But then, we “them” people know more about
straights than they know about us.
As long as
the world is a zero-sum game with psychological wealth rationed by committee,
gays will always be a “problem.” When I
state my sexual orientation and associated ideas, I make some people less
comfortable with themselves, and more aware of their own vulnerability both to
institutional change and to future changes in their own beliefs. Left-wing orthodoxy would leave communal
democracy the prerogative to let gays teach in high school and have their
medical treatments paid by public funds, but not keep ROTC scholarships and pay
higher taxes than most (married) straights. Gay
orthodoxy focuses on equal rights in the abstract, to be won only through
collective political mass (according to truisms of political science [including
“tyranny of the majority” ],[188] which complicates things for conservatives
obsessed with reducing the count of gays)¾ fund raising and getting
out the vote¾with inadequate attention to
the moral issues when applied on an individual and family level. A world founded on personal initiative,
however, invites gays to add to its wealth.
Homophobia will be strangled by repealing the last fragments of
authoritarianism.[189] Whether gays and lesbians will be welcome as
full participants in society depends on the cutting loose of this survivalist,
almost Luddite mentality.
Of course,
to borrow from Bill Clinton, government neutrality “is not a perfect solution.”
For one thing, many of us still concede that, because the world is still a
dangerous and complicated place, we need to have the state define such
underlying notions as “military service” and “marriage.” Someplace, we have to
draw the line on when the state is intruding improperly into private, personal
decisions. A good place to do this is with our Right to Privacy and Intimate
Association Amendment, presented in the next chapter. The amendment will return
the most intimate aspects of decision to the individual, and trust that people
will start doing the right things out of “enlightened” (as opposed to
narcissistic) self-interest. We have to let the women write books to “trap” men
into marriage, while the men concoct and publish schemes to conquer women without
marrying them (or at least marry women who only want to get married)[190].
We have to be able to trust human nature with family values.
We will
justify the amendment by claiming that government should not have the warrant
to grade individual citizens on the nature of their private adult associations.
But we may feel uncomfortable withdrawing from approval and support of one
citizen’s life at the expense of another’s. It is not so easy to separate
intimate association with other private pursuits; to let people go free, we
need a cultural emphasis on responsibility, not just for our superficial
actions but for each other. People who will answer for their own actions should
be free of interference from their government.
Conversely, people need to understand that every bad result ultimately
traces back to mistakes by individual people, not just by “the system.” All of this goes way beyond the starting
issue of equal rights for gays, and makes up the core of “libertarianism.”
Will this
personal accountability model really work? Will businesses and property owners
behave ethically with respect to minorities, and especially those clearly,
through no fault of their own, less able to fend for themselves in an otherwise
increasingly meritocratic world? Certainly, economic and tax policy which
rewards long-term savings and growth, and more accountability for the use of
“other people’s money” would help. But we need the courage to cut the apron
strings of the welfare state. If people in the inner cities have no place to
turn but to family and an entrepreneurial job market, these free-market
mechanisms will eventually work, and big business will discover it has a new
block of customers to nurture.[191]
By using
our “democracy” to establish a publicly funded safety net, we have surrendered
to government a good bit of control over our own personal destinies. If others
have to pay for the results of our “private” behaviors, others have a prospective
interest in our innermost motives. Just to provide what seem like essential
services, from controlling air pollution to providing public schools,
governments (at different levels) find themselves forced to “favor” one
lifestyle at the expense of another. A new paradigm of social expectations
seems called for- perhaps broader than the idea that parenthood should be
expected or that at least, as Jonathan Rauch proposed, marriage (straight or
not) should be presented as the “right way to live.” The new psychological
rules would request that, before one is really taken seriously as an adult
(even, say, by employers), one shows a commitment to helping others (if not
just to somehow getting “married”). A
society in which government doesn’t try to create social and economic justice
needs to cultivate an ethic of volunteerism,[192]
and this willingness in personal motive may become a stricter source of
morality than our old-fashioned laws.
This suggestion answers Michael Lerner’s “selfishness-driven” short-term
market forces[193]
without the coercion of government, and leaves intact the ultimate control of
psychological direction to individuals. Paul Rosenfels
had argued, in the 1970’s, that his notion of “creative” psychologically mated
relationships allows gays men, at least, to experience deep commitment
(including sometimes providing for others besides themselves) without having to
“shut up” about personal matters that infringe on inner identity but that, in
the conventional “family” world, are too disturbing and disquieting to be
discussed. “Family secrets” no longer
need to conceal the truth.
Other
policy objectives that would go with a Privacy Amendment, following what we
have said about the family and the workplace, are rather obvious. Will we
really stop burdening our children with the debts of our wasteful spending on
both the military and entitlements? Will we convert Social Security, a
government-sponsored chain letter or pyramid that is quickly collapsing,[194]
into a private system of (perhaps mandatory) annuities managed by
professionals,[195] in the free market to get people to provide
for more of their own senior years or illnesses (and debate the actuarially
unfunded portion as a regressive income tax, which is what it really is)?[196] Will long-term self-interest (and insurance)
associated with private property ownership lead to proper respect for the
environment (including the coal fields I visited in my youth)?[197]
Will further deregulation (and restructuring) of transportation and energy
industries lead to the development of an economically viable electric car?[198] Can we go to a system of private catastrophic
health insurance and get off the bandwagon of routine care as an entitlement or
employment benefit? Can the consuming
public be taught to empower itself (through “shopping” seriously for health
care) to control health care costs without rationing[199]
and without the bitterly divisive politics of whose disease (whether AIDS,
breast cancer, Alzheimer’s, or heart disease) gets the most public funding?
Will voluntary arrangements, predicated on genuine public health priorities,
provide maintenance medication to people with AIDS and appropriate antibiotics
to poorer people with other diseases?[200]
Will the process to approve new medications (and “orphan drugs”) be
streamlined? Will consumers think twice about purchasing goods made by Third
World “soldiers” treated by their employers as conscripts?[201] Will community support rally to help parents
of a disabled child? Will we be able to provide security at airports and public
events without the privacy intrusions which, if extended, arguably could lead
back to government intrusion into sexual and personal matters? Already we see
private companies have fought hard to be allowed to sell home-test kits for HIV[202],
which allows consumers increased capability to take tests in confidence. Will
privately managed and competitive licensing and consumer approval mechanisms
(Underwriter Laboratories provide an example)
be dependable?
And will
we get government out of the business of subsidizing personal real estate debt
with FHA loans or low-income housing loans (as well as the mortgage deduction),
all of which bid up prices, subsidize builders as a kind of corporate welfare,
encourage private citizens to owe more than they are otherwise worth and give
private citizens the impression they do not have to pay their personal debts
when values go south?[203]
The other
side of these questions is, of course, will individual people really start
being more responsible for their own actions? If government punishes provable
wrong-doing, the kind with visible victims, and then stops funding
irresponsible behavior, perhaps they will be forced to. When people “OD” on
drugs or engage in reckless sex, do they think about the fact that they are compelling
others to pay for the cleanup of their behavior, and indeed providing
justification to those who want to keep the state in the bedroom? Do people
who, encouraged perhaps by welfare, make babies without intending to marry feel
any compunction? A deeper answer, however, is that “activist government,” which tries to
engineer solutions to all the world’s problems, simply keeps people socialized
in “klans” which compete with each other for
government handouts, and also keeps people from recognizing their own personal
responsibilities for their own behaviors, and from realizing that by
restructuring their actions they really can make differences as individuals.
Most people really do not want to test the limits of temptation. Arguably, by trying to take care of the
dirtiest problems (and scapegoating the minorities
who “cause” them), government today is encouraging a short-term, utilitarian
“selfishness” which undermines families and caring, permanent bonds between
people. When government must provide a safety net, stimulate public works, or
protect any community “public good” (however legitimate), government must, in
its inevitable redistribution policies, always make rules and distinctions that
will invade into citizens’ private spaces. When government tries to make
self-harm into a crime because of the public good of protecting children and
other vulnerable people, it generally prevents only a small fraction of the
radioactive “private” conduct society considers destructive. The distinction
between private and public spaces is never absolutely exclusive. The test of libertarianism will be that the
self-interested free market, with its use of money as a universal, irreducible
abstract measure of worth (as well as exchange) really does overcome the
inequities associated with inherited wealth (which irresponsibility can waste)
and superficial incentives to exploit the less fortunate.
On the other hand, if people are really to get
the help they need, and for which they have always counted on government uplift,
people will have to volunteer and give to a level unprecedented in the past.
The opportunity for people to direct their donations through public charities
like the United Way[204]
becomes more important than ever, but so does a new personal valuation for, as
Jimmy Carter puts it when he sells his Habitat for Humanity, “service.” Our “market liberal” approach will indeed
stand or fall on how just how “enlightened” self-interest really works, and the
gay community makes a very interesting application of this general problem. But
we’ve got to stop doing this to ourselves, letting politicians divide us over
emotional, surrogate issues. The law should let people do what they want with
their own lives, but practical “libertarian” cooperation requires that people
recognize and accept limits and commitments.
We need to
stop using taxes to provide nameless people (whom we don’t want to know or
support on our own) safety nets, and to make one person pay for another’s
mistakes. President Clinton, in his 1996 State of the Union Address, announced,
“the era of big government is over, but we’re not going back to fending for
yourself.” Then, we need to fend for each other, on our own volition.
By enumerating
all my questions, I’ve played a devil’s advocate with libertarianism. Solving
the issues is anything but simple, but we will always come back to the principle
of personal responsibility and freedom connection.
What we
need is a public philosophy that supports self-empowerment. To me, this means
the capability to advance my own ideas without prior collective approval of others,
even of “family.” Towards such ends, we
have reviewed the practical “policy” steps of implementing a public confidence
in personal initiative, and now, in the next chapter, will look to changing
some of our constitutional precepts. But we must always maintain a grip on the
psychology of government’s bully pulpit, as we look for principles to guide the
decoupling of government from issues of personal fulfillment. Bad laws, after all, just cause the public to
take good laws less seriously, and to think about getting away with things
rather than cooperation. Author Mary J. Ruwart adds
to this freedom-responsibility-civility paradigm her concept of
“non-aggression.”[205]
Paul Rosenfels speaks of a new human science, which
sounds as tricky as physics, but leads to an individuality founded most of all
in the integrity of one’s own love and power capacities. This starts at the
grass roots level and, hopefully, through Mutual Agreement, can win over the
general public. It will not be easy. “The fight against individuality is a
struggle for survival by those who have lost access to such individuality in
their own lives, and they cannot be expected to become willing and cooperative
victims in their own psychic devaluation.”[206]
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[1]
[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
[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,” Advocate,
[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).
[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,
[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.
[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.
[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.
[24] Joseph Steffan,
Honor Bound: A Gay American Fights for the Right to Serve his Country (New
York: Villard, 1992), p. 16.
[25] Hillman, 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).
[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
[37] William F. Buckley and
others, “The War on Drugs is Lost,” National
Review,
[38] Frank Herbert, Dune (New
York: Putnam, 1965).
[39] Robert
Samuelson, “Anti-Smoking Hysteria,” The
[40] An appeals court in
[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!
[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.
[44] Peter Unger, Living High
and Letting Die: Our Illusion of Innocence (London: Oxford University,
1996).
[45] In some African cultures,
women are so little respected as equals that female circumcision and clitoral
mutilation is still practiced.
[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,
[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).
[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,”
[50] Barbara Vobejda,
“Social Trends Show Signs of Slowing: Family Characteristics Appear More
Stable” The
[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.
[52] Ed Mickens,
“Is There a Lavender Ceiling,” Out,
Dec. 1996, p. 150.
[53] Barbara Vobejda,
“Day Care Study Offers Reassurance to Working Parents,” The
[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
[55] Nash, Time, op. cit. (see Ch.
3) and ABC “Nightline,”
[56] Philip Lawler, “Sex,
Marriage, Love, and Babies,” The Wall
Street Journal,
[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.
[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,
[63] The
Titanic, history series on A&E Cable History Channel, Sept., 1996.
[64] The Communications Decency Act of 1995 is
discussed in Chapter 6. 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,
[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
[68] Leon Eisenberg, “Is the Family Obsolete,” The Key Reporter, Phi Beta Kappa, Spring, 1995. Scandinavian countries are well known for 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?
[69] Jonathan Rauch, “A Pro-Gay, Pro-Family
Policy,” The Wall Street Journal,
[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, ,
[73] On
[74] Mixner, op. cit., p. 141.
[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.
[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.
[77] 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.
[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.
[82] Although some libertarians, while advocating
total privatization of schools, also
opposed vouchers; they argue vouchers lead to dependency.
[83] David Boaz and R. Morris Barrett, “What Would
a School Voucher Buy?” CATO Briefing
Papers, No. 25, Mar. 25, 1996.
[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 9.
[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).
[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.
[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)?
[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.
[100] Marshall Kirk and Hunter
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.
[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.
[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.
[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.
[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).
[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.] 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.
[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.
[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., . 237. And remember the Bakke (medical school admission) case of reverse discrimination!
[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.
[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.
[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.
[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!
[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 FLMA
and FLSA [and sometimes copyright infringement]. See Paul Kennedy, Robert Tisch, “When Supervisors Are Sued,” Human Resources, Jan. 1997, p. 124.
[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.
[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.
[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.
[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. 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.
[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).
[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.
[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.
[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?
[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.
[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.”
[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.
[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.
[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.
[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.
[142] Henry Hyde, “A Mom and Pop
Manifesto,” Policy Review, The
Heritage Foundation, Spring, 1994, p. 29.
[143] William Tucker, “A Return to
the Family Wage,” The Weekly Standard,
May 13, 1996, pp 27-31.
[144] For varying views of this workplace
imbalance, see “Balancing Work and Fanily,” 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.
[145] The Fair Labor Standards Act says little
about “salaried” or exempt workers.
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.
[145]-cont. Steven Kahn, Barbara Brown, Brent Zepke, and Michael Lanzeron, Personnel
Director’s Legal Guide, 1993 Cumulative Supplement (Boston:
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.
[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.
[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.”
[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.
[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 retaliated against teachers with
false accusations of homosexuality after getting bad grades.
[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.
[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.
[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.
[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.
[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.
[166] “ENDA, Pros and Cons,” Congressional Digest, Nov., 1996.
[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.
[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?]
[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?
[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.
[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.
[180] ABC “Prime Time Live,” Nov.
27, 1996.
[181] Chandler Burr, op. cit.
[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).
[186] Andrew Sullivan, Virtually
Normal: An Argument About Homosexuality (New York: Knopf, 1995), p. 171.
[187] OH,
Editorial, The Quill, Gays and
Lesbians for Individual Liberty, March, 1996, p. 3
[188] Wolinsky
and Sherrill, op. cit., p. 86.
[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.
[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.
[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 and Medicare
relieve people like me from the responsibility of supporting our aging parents.
They don’t have to spend their own savings, they can leave more to us. Is that
right? In Singapore, people are required to support elderly parents!
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.
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.
[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.
[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.
[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.
[203] On January 8, 1996 (the first day back from a
government shutdown), 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!
[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.