Date: Mon, 21 Aug 1995 11:51:38 -0500 From: mohr richard d Special Rights, Equal Rights, Gay Rights? by Richard D. Mohr (February 1994) This year, as many as eight states may have referendum initiatives directed against gay civil rights protections. Last year, across the nation gays lost every one of nineteen such local referendums. In Cincinnati, the group launching the referendum baptized its organization "Equal Rights, Not Special Rights"; the gay side called its organization "Equality Cincinnati." Both sides claimed equality as their principle. Clearly America is confused about the nature of equality. The "no special rights" side seems to take equality to mean equal opportunity or identical access to whatever government is offering by way of rights, privileges, or possessions. In consequence, these people suppose that any legislation that gives something to a specified group violates equality. And, indeed, equality understood as equal opportunity is quite entrenched in America's folk rhetoric of justice. For example, the chief federal agency for the enforcement of the 1964 Civil Rights Act is called the Equal Employment Opportunity Commission. Still, this sense of equality does not capture all or even the core of what equality is. Equality is at heart a principle of non-degradation. It asserts that people are not be held in lesser regard, as morally lesser beings, independently of their actions. Consider anti-miscegenation laws. Formally they treat blacks and whites the same, for the deny them identical access -- to each other. Blacks can't marry whites; whites can't marry blacks. What then is the inequality in anti-miscegenation laws? They are inequitable not because they denied equality of opportunity to blacks, but because they were part of a system that holds blacks in morally lesser regard independently of what they individually do; such laws viewed blacks as dirty, loathsome, abject. Or again, consider the nation's paradigmaticly racist joke: "What do you call a black millionaire physicist who's just won the Nobel Prize?" The answer is the spondee, usually shouted "nigger." Notice that the person in the joke has availed himself of and realized opportunity as fully as anyone could. The joke's butt could not launch a suit against the joke's teller claiming that he has been denied access to some right, some freedom, some opportunity -- for he has it all. Rather the joke's belittling fun presumes that the physicist's disesteem is entirely a matter of a perceived status having nothing to do with his actions. In the joke's moral system, which is to say America's popular morality, this person never could be equal no matter what he did. Equality, then, in the first instance, is a principle of non- degradation, and only derivatively, if at all, a principle about similar access. The "no special rights" people then are understandably but profoundly confused about equality. It is true that equality is a right which everyone has, for everyone has a right not to be treated as a morally lesser being because of some status he or she has, some group-membership independent of any action that puts the person in the group. Yet, given this understanding of equality, both assertions and violations of it will always make reference to the specific treatment of some group, will turn on whether some group, as a group, has been degraded. Justice then requires looking to the specifics of history and social custom, not to generic human nature, in order to determine whether some law or treatment promotes or violates equality. Have gays as a group historically been treated as less than full human beings, as loathsome, abject beings? The answer from the social record of jokes, slang, symbolic legislation (like military policy and unenforced sodomy laws), family policy, religious teachings, and medical history is "yes." Constitutional equal protections should protect gays from degrading treatments by governments. Civil rights legislation for gays similarly promotes rather than destroys equality since it eliminates the humiliation, degradation, and insult caused by discrimination in housing, employment, and public accommodations. Such laws then are not special treatments in any way that is morally objectionable. To the contrary, they are the historical and socially specific treatments which equality as a general principle of non-degradation requires. The rhetoric of "no special rights," though now targeted just at gays, is a ploy to attack all civil rights legislation which specifies any social group within its protections. It is a rhetoric which masks a mentality of "us versus them" and succeeds only by a stratagem of "divide and conquer." Therefore, other legally protected minorities -- blacks, hispanics, women, Mormons, jews, the disabled -- all need to be particularly mindful that gay rights do not steal anything from them, but rather help solidify the very principle of equality in virtue of they have these rights in the first place. -30-