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





     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 Washington gay libertarian “think tank,” Gays and Lesbians for Individual Liberty (GLIL), carries out its biological life cycle.

     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 Dallas newspapers, my boss had actually said, “you must be a Democrat.” No more. In time, I began submitting essays to the newsletter, The Quill, and getting them published. This led my getting published in other “small” sources, such as the Colorado Springs Ground Zero News, which ran my 1993 “White House letter.”[1]  In early 1995, I took over editing The Quill.  We have enjoyed some lively debate on the newsletter content, whether it should be promotional and “newsy” and try to sell simplified statements about libertarian principles to a larger audience, or whether to go into issues in depth. We have also reconsidered  how far we should go beyond gay issues, to cover such problems as Waco and FDA drug approvals from a less-government perspective. We have started hosting public policy forums, addressing issues such as home-test kits for HIV.  

     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 United States.  The platform claims that the only way to achieve real freedom and liberty is to radically deconstruct almost the entire federal government, outside of bare bones functions, such as common defense, foreign policy and judiciary.  It would require elimination of income taxes (which, after all, are legally “voluntary”) rather than a “dishonest” attempt at well-intentioned “reforms” such as the flat tax.  It also proposes quick privatization of social security and total legalization of drugs. That is, it’s all or nothing.

     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 Portland, Ore., before going off to a forum on same-sex marriage. My interest, expressed in my own writing, was to propose realistic policy that would motivate and enable people (gay or not) to control their own lives and account for themselves. This approach might be characterized with the specific term, “market liberalism,” which emphasizes “the principles of the American Revolution - individual liberty, limited government, the free market, and the rule-of-law.”[7]  I didn’t think it was necessary to risk an economic nuclear winter by immediate cold turkey. With the income tax contributing about 25% of federal revenue, I do think Browne’s idea of ending it and “replacing it with nothing” - and catching up on the debt by selling off federal assets, really does need to be debated publicly.[8]

     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 University of Texas at Dallas and listened to speakers like Leon Jaworski, who had been the first special prosecutor for Watergate. He would describe moral values as “constant concern for individual self-realization, respect for the dignity and worth of one’s fellow man, and appreciation of the imperatives of social justice.”[11]

     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 Vatican has more recently backed off this position when assessing the moral status of abstinent gays.

     Since the time of Vietnam, Stonewall and the Moonwalk, however, a more modern morality has evolved. It goes back to the fundamental notion of freedom: you can indulge your body and flail your arms as much as you want, until you hit someone else. Of course, it gets hard to draw the line. When are we watching computer kiddie porn in crowded theaters?

     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 Naval Academy authorities, Steffan writes, “Personal honor is an absolute-you either have honor or you do not..”[26] I only give up my honor out of my own volition, even if somebody “makes” me (although it gets tougher if I lie to save a life in a hostile situation); and once I do so, I’ll never completely recover my own self! The military uses the notion of honor to characterize discharges -- labels for subsequent civilian careers -- because absolute trust is required in combat situations. Perhaps Steffan is building on Shakespeare: “If I lose mine honor, I lose myself.”[27] Honor is more than just honesty or its masculine analogue (in Rosenfels), courage.[28]  It seems to imply zero tolerance of dishonest acts by one’s peers. Integrity is an even more inclusive term. Stephen Carter writes, “Integrity requires three steps: discovering what is right from wrong, acting on what you have discovered even at personal cost, and saying openly that you are acting on your understanding of right and wrong.”[29] One can be honest or courageous, but for the wrong, self-serving motives. Integrity requires fidelity to one’s obligations to others, from which honesty can provide a convenient escape. But integrity requires the individual to discover truth and right, including interpretation of these obligations, for himself and act on it. When may we have to accept situational ethics?    

     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 CIA of intentionally (through the Contras) trafficking drugs in black neighborhoods in order to keep African-Americans vulnerable to the whims of government.    

     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 Israel. World War II reinforced the importance of family[46] and seemed, when the men returned, to have enriched it by making women aware of their contingent futures asserting themselves in the workplace.              

     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 IRS).  It’s a different kind of intrusion, where politicians take their money and tell them how to educate their children, than it is for gays who feel set up for “discrimination.” It’s still too much government. What makes family values an acute issue, though, is that some people want more validation of the “traditional” family from “society” and particularly government. They tend to see family and parental obligations as an intrinsic burden which must be counteracted  by increased social supports. In a climate where people look to government to define the strike zone, field-goal setback or legal ways to “castle,” homosexuals reasonably expect their own committed partnerships to gain equivalent legal recognition.  Politicians and judges can use sodomy laws as a lazy, if circular, excuse to say, “No!”  As noted before, some go so far as to imply that a major reason to bolster the family is to discourage young men (or women) from turning “gay.”[47]  

     “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.

     MCC Dallas set up “family groups” within its congregation. Some people took this quite seriously, to the point of repeatedly offering housing to homeless or displaced persons who joined the “families.”

     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 IRS-style intrusions to enforce; hopefully, young straight couples won’t find condition #2 so committal that they just decide to start pregnancy before getting married. The Full Faith and Credit Clause might still force other states to recognize “marriages” constructed according to these conditions (without DOMA, at least), although in some states, the presence of sodomy laws (or, in nine states, laws against cohabitation by unmarried persons)[95] could be used to block recognition of gay unions as contracts procured for “illegal” purposes.   Finally, the proposal would strike a reasonable balance between individuality and all the known social benefits of marriage.

     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 IBM, buried deep in procedures and the prudishness of stocking garters, and carted away most of the profits of the PC revolution - and eventually forced the Big Blue to give up its successful no-layoffs policy.  Look at how our consumers buy CD players from parts of the world where workers will toil for less just to begin to catch up. Look how our own pension fund managers, much more dependable fiduciaries of our savings than social security, demand that CEO’s achieve a clean profit and market share every quarter.  The new wave of corporate mergers, leveraged buyouts and restructuring, though it had been growing gradually for years, seemed to take off, ironically, after oil prices plummeted in the mid 1980’s.  Reaganism, for consumers, was too successful.  We do all this to ourselves.

     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 MCC members.

     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 July 17, 1996, the Human Rights Campaign issued a report showing that over half of the nation’s replying “Fortune 500” companies have voluntarily adopted non-discrimination clauses in their personnel policies.[168] Many of them name sexual orientation as a non-legally-driven “diversity factor.” Apple and Disney offer domestic partnership benefits[169] and then face harassment by local governments who threaten to withdraw tax abatements, or “Christian” groups who try boycotts (as gays once had with Coors).[170]  In September 1996, IBM followed suit, and explicitly did not cover unmarried heterosexual couples, which had the legal right to marry. The free market will decide who is “right.”  Some of my “conservative” acquaintances actually complain that companies like Walt Disney have only “making money” in their sights, rather than “family values” when they adopt such “pro-gay” policies.

     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) NBCDateline” 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]  Bill Boushka, “Military Ban: Constitutional Questions and Policy Proposal,” Ground Zero News, March, 1995, p. 17. See also notes by editor Frank Whitworth.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[20] Former National Gay and Lesbian Task Force President Melinda Paras always spoke of fundamental collective “fairness” as an underlying moral value. It’s not fair for the handicapped to be denied accessible parking spaces, and it’s not fair for gays and lesbians to be discriminated against.

[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 Washington Times, Oct. 24, 1996, p. A16.

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

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

[39] Robert Samuelson, “Anti-Smoking Hysteria,” The Washington Post, Apr. 23, 1997, p. A21.

[40]  An appeals court in Philadelphia did strike down the 1995 “Communications Decency Act.”

[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, July 17, 1996, p. A15.

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

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

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

[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 Washington Post, April 4, 1997, p. A1. The study was conducted by the National Institute of Child Health and Human Development. But Brownlee and Miller, op. cit., raise troubling questions about typical day care and the affordability of good day care.

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

[55] Nash, Time, op. cit. (see Ch. 3) and ABC “Nightline,” Apr. 16, 1997.

[56] Philip Lawler, “Sex, Marriage, Love, and Babies,” The Wall Street Journal, Mar. 4, 1996.

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

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

[64]  The Communications Decency Act of 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, Dec. 10, 1996, p. 16.

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

[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, Nov. 29, 1994.

[70] Males, The Scapegoat Generation (1996).

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

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

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

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

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

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

[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.