Tuesday, October 13, 2009

Taking on Sutherland's Pro-disrimination Statement

I just got a press release from the Sutherland Institute about Salt Lake City's proposed non-discrimination ordinance.

Needless to say, they have some issues....

SALT LAKE CITY — October 12, 2009 — Salt Lake City Mayor Ralph Becker recently released the details of two different ordinances designed to ban employment and housing discrimination based on “sexual orientation” and “gender identity.” In response, Sutherland Institute reaffirms its commitment to marriage and family as matters of public policy. We continue to draw a negative policy correlation between attempts to advance “sexual orientation,” “gender identity,” and other similarly vague legal notions and all honest attempts to protect the meaning of marriage in the law.

While we commend Mayor Becker and his staff for their openness and willingness to discuss their recent proposals adding “sexual orientation” and “gender identity” to Salt Lake City’s nondiscrimination ordinances – and thank him and his staff for honestly and sincerely seeking Sutherland’s input and advice as their processes have unfolded – nonetheless, we oppose the inclusion of these terms in the law anywhere in the State of Utah.

The experiences of other states, namely California, Massachusetts, Connecticut, and Vermont, prove that the inclusion of terms such as “sexual orientation” and “gender identity” in state and local laws is used, ultimately, to denigrate the meaning of marriage. Seemingly rational and everyday concerns, along with more egregious concerns affecting the very safety and justice to be afforded every American, are manipulated and twisted by political activists and activist judges to reach beyond the limits of legal reason and the public good.

However, what Sutherland fails to mention is that the states of California, Massachusetts, Connecticut and Vermont didn't language in their state constitution defining marriage, and that's part of what led those activist judges to rule the way they did. However, Article I Section 29 of the Utah Constitution states "(1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect" So, in order for their slippery slope to happen, the activist judge would have to rule the Utah Constitution unconstitutional, which is illogical.

Mayor Becker’s new anti-discrimination proposals only open the door to such legal abuses in Utah.

I separated this out and put this after my rebuke to point out Sutherland's all-out lie.

In meeting with the Mayor’s staff, Sutherland encouraged them to emulate the compromise found several years ago on the state hate crimes bill (Criminal Penalty Amendments, H.B. 90, 2006). Conservatives and liberals collaborated to craft a law that addressed all concerns without the inclusion of vague language such as “sexual orientation” or “gender identity.” Furthermore, we alternatively recommended that Mayor Becker might choose to propose non-binding resolutions that could include vague language and yet do no harm to the integrity of state law.

As the current proposals stand, Sutherland opposes them.

So, in other words, Sutherland wants laws that don't mention them thar gay people. If you ignore, them, they'll just go away....

First, the proposed ordinances are legally vague. Redundancy is not clarity. To define “sexual orientation” as “heterosexual, homosexual, and bisexual” is redundant. The definition does not clarify the words – it is the equivalent of stipulating that a specter is a ghost.

Funny, most laws have redundant definitions. As an example, Holladay City Code Chapter 8.01.030 defines an animal: "Animal" means every nonhuman species, both domestic and wild." Chapter 8.01.120 of the same Code differentiates the difference between a cat and a kitten.

And, how does the definition of sexual orientation not clarify the words?

Second, the proposed ordinances are dangerously broad. The inclusion of the term of legal art “perceived as” disallows any serious response to an accusation of discrimination. If an accuser simply perceives himself to be homosexual – or perceives the accused to have acted discriminatorily based on the accuser’s perception of himself – the accused has no basis for an honest defense against the charge of discrimination, and neither does the city’s appointed “Administrator” have reason to consider any defense if the ordinance allows anyone to subjectively “perceive” anything.

Discrimination claims put the burden of proof on the accuser. Otherwise, nobody would ever be fired ("I was fired because I was Mormon/White/a guy, etc").

Third, the proposed ordinances are inherently unjust to the parties they seek to regulate. Businesses that operate within the city limits of Salt Lake would be compelled to abide by “civil rights” laws that do not exist elsewhere in the state. While it is not uncommon for individual municipalities to differ in a variety of business regulations, it is uncommon – indeed, unprecedented – for businesses to comply with a variety of “civil rights” laws.

Yes, it's difficult for businesses to have to comply with a variety of laws, but that's just the cost of doing business in multiple jurisdictions.

The terms “sexual orientation” and “gender identity” have no place in Utah laws, especially not in employment and housing laws. Sutherland addressed these specific concerns earlier this year as the State Legislature was pressed by homosexual activists to pass similar ideas as a part of the “Common Ground Initiative.”

Why, because Sutherland says so?

No person is legally fired for who they are – although plenty of people are legally fired for inappropriate behavior, incompatible personalities, incompetency, or anything that gets in the way of personal performance or team productivity. This is the nature of at-will employment in a free society ...

Culture, not force of law, controls our workplace relationships…

The law protects men and women and children – male and female all. Only in sex professions are an employee’s sexual life relevant to the workplace. In every other work environment, the issue of workplace protections based on one’s sexual preferences is, in itself, discriminatory. It turns an otherwise irrelevant part of an employee’s work experience into something more important than the job itself – and does so through force of law.

Well, except for cases where people *have* been fired because they were gay. Yes, a person's sex life outside the workplace is not relevant, but employers make it so by asking. I've been asked by an employer if I was gay. I'm not, and answered as such, but I wonder what would have happened if I said I was, because legally they could have fired me.

No person can be legally denied housing for who they are – they can be legally denied housing for what they do as tenants, rental experiences based on prior references, or a landlord’s perceptions about how the applicant would fit into the culture of the housing project or surrounding community. These standards apply to every rental situation in a free society, regardless of someone’s private sexual behavior…

The real question for a landlord, in these cases, concerns her perceptions (visual, communicative, or intuitive) about the rental applicant. Would this applicant fit the culture of the housing unit, complex, or neighborhood? Based on hard experiences, the landlord may perceive that the applicant will have too many disruptive parties, too many strangers coming and going, or even undisciplined children. In the protection of private property rights in a free society, all landlords have this right to subjectively, but reasonably, screen all tenant. [ii]

So, in other words, if my parents, as landlords, have had probelms with Republicans who rented from the, it's OK to deny applicants based on party affiliation. Or if I wanted to move to the Marmalade district, I could legally be denied because as a Latter-Day Saint I don't "fit the culture of the housing unit, complex, or neighborhood."

Sutherland does not condone discrimination against any human being on grounds of innate and universal human traits addressed by civil rights laws. Nor does Sutherland condone irrational discrimination against any human being for chosen behaviors.

Well, that last sentence is alie, as evidenced by the rest of the press release.



Paul Mero said...

I sent you a response through FB...it was too long to be accepted directly through this blog site. Perhaps you'll post it for me?

Jason The said...

A discussion about this is going on at KVNU FTP if you want to jump in, Bob. I linked to this post in the comments there, because I think you bring up something worth discussing.


Paul Mero said...

Thanks Bob for posting our press release. As usual, you put up pretty good arguments. Unfortunately, our disagreement here is more over the “facts” and not just an opinion.

Utah does have Amendment 3, thank goodness. But a constitutional amendment can be repealed. What would that process look like? Well, what did that similar process look like in CA? It looked like a court amassing mountains of state and local code and ordinances and concluding 1) that a constitutional amendment could very well be unconstitutional and 2) the track record throughout the state in regards to gay rights seemed clear enough for the Justices to wonder out loud why gays shouldn’t be afforded the status of legal marriage.

There was no logical fallacy of a “slippery slope” in play. The precedents were all very logical to the Justices, so much so they were baffled why the status of marriage shouldn’t be bestowed on same-sex couples.

There are myriad legal scenarios that would use the prevailing feeling of society in conjunction with actual local ordinances (like SLC’s proposed ordinance) to move a court to look at discrimination…be it job, housing, or marriage. This approach is what has been used in the other states to pass (and uphold) their “gay marriage” laws.

Again, this approach is no logical fallacy of the “slippery slope.” It’s the actual legal strategy of gay activists...the effects of which have been acknowledged by high courts in those states, especially CA.

Over time, judicial pronouncements (even if bound by our state constitution) can begin to wear down public opinion. And public opinion is what always changes laws.

So Sutherland pushes back to reinforce current prevailing thought and protect the meaning of marriage against the slow but steady pressure and strategy to change its meaning.

Bob, I am curious how you can call a legal or political opinion (yours, mine, a court’s) a lie? Is what I just wrote here a lie?

Certainly you may disagree with me…but a lie?

Paul Mero said...

Let me move on. What does “sexual orientation” mean to you? Does it mean “heterosexual, homosexual, or bisexual”? What do they mean? In fact, can you intelligently define any of those three with describing some sort of human activity?

My point is that we can’t define “sexual orientation” without describing human behavior. “Orientation” meaning “born that way” doesn’t exist. We are born male and female with moral agency. Nothing more. No medical or scientific research, though plentiful in attempts, has yet to prove otherwise. Even the APA has given up the charade. In most cases, someone discriminated against because of race doesn’t have to prove race just the discrimination. Why? Because the race is self-evident. In the case of “sexual orientation,” under its usage in these proposed ordinances, it’s saying that something that can only be proven through human behavior doesn’t have to be proven through human behavior. What is self-evident about homosexuality, heterosexuality, or bisexuality? It’s not self-evident and the case you allude to (the hetero man fired because someone thought he was homosexual) proves that.

Thinking legally now, if you could walk into your work and say, “I’m a Martian” and invoke some civil rights ordinance that protects against Martians, what’s an employer to do? Is there a way to know you’re a Martian? Can you prove it? In the case of “sexual orientation,” under the law, how do you prove it? You just say you are homosexual? Of course, that doesn’t prove anything…that doesn’t give an objective observer anything to hang her hat on.

Burden of proof is a key legal concept here. Add to this definitional mess the idea of “perceived as” and everything becomes highly subjective.

I am pretty sure our argument is solid: the proposed ordinances are vague, too broad, and inherently unjust within our system of American jurisprudence.

To answer your last question, yes, your parents, as landlords, could “discriminate” against a Republican. I wouldn’t condone that, but they could legally. So what would prevent them from doing so? Prevailing morality and culture – the idea that they would look silly in the eyes of their neighbors for doing so – not the force of law.

Gay activists know that changing prevailing morality and culture is the only true and lasting way to achieve their objectives. They are not stupid. They know that prevailing morality and culture can be coaxed along through the opinions of community leaders and decision makers, like judges in our courts. It’s all a grand strategy and they only have ground to gain. I don’t fault them for trying. So why fault me, and others like me, for trying to prevent the change from occurring?

JBTalcott said...

Paul Mero writes:

" What does “sexual orientation” mean to you? Does it mean “heterosexual, homosexual, or bisexual”? What do they mean? In fact, can you intelligently define any of those three with describing some sort of human activity?My point is that we can’t define “sexual orientation” without describing human behavior. “Orientation” meaning “born that way” doesn’t exist. We are born male and female with moral agency. Nothing more. No medical or scientific research, though plentiful in attempts, has yet to prove otherwise."

First I would like to point out to Mr. Mero that "male and female" are expressions of gender and should not be confused with "sexual orientation" or "sexual identity". Just because one has the "hardware" does not necessarily mean they have the "software" to match, if you know what I mean.

Wikipedia at this link http://en.wikipedia.org/wiki/Sexual_orientation gives the following definition which is on point to this Mr. Mero's excellent question.

"Sexual orientation is a pattern of emotional, romantic, and/or sexual attractions to men, women, both genders, neither gender, or another gender. According to the American Psychological Association sexual orientation also refers to a person’s sense of "personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them."[1] Sexual orientation is usually classified relative to the gender of the people who are found sexually attractive. Though people may use other labels, or none at all[2], sexual orientation is usually discussed in terms of three categories: heterosexual, homosexual, and bisexual. These orientations exist along a continuum that ranges from exclusive heterosexual to exclusive homosexual, including various forms of bisexuality in-between.

So it would seem by this definition of sexual orientation that behavior is but one element in that definition which is commonly called "acting out" or "acting upon" one's sexual desires with another human being.

Making the statement that "orientation" meaning "born that way" doesn't exist as though that were a fact is simply not true. A careful reading of Section 4 "Influences on Sexual Orientation" at the link provided supports that response. At best, whether ones sexual orientation is present at birth is still an open question that continues to be studied and hotly debated by those on both sides of the issue. I believe even more important that the clinical and biological studies is the anecdotal evidence from those people who are openly gay themselves stating that they have always had those feelings and attractions from their earliest recognition of their human sexuality. It is baffling to me that those who have never had that same experience can have the audacity to say that this description of one's own intimate feelings could not possibly be true.

In my opinion it is nonsensical to believe that a young boy growing up in the local LDS culture being raised in the church in a loving and nurturing LDS home would one day by choice be attracted to and have strong desires to perform homosexual acts with a member of the same sex and be repulsed with thoughts of having physical sex with an attractive female. This is especially true in the fact that by making such choices and "coming out" in this local culture he will very likely be ostracized by both his family and his church.

In my opinion, no stronger argument exists that "sexual orientation" is not by choice but is brought about by several factors inherent in the mind and body of the person than the one stated above. It is true that the "behavior" of acting upon those feelings and desires is by choice, but that cannot honestly be construed to also mean that the innate desires, feelings, and attractions that underlie that behavior are by choice as well.

Paul Mero said...

The APA definition is meaningless in law and policy...which is precisely the point as we consider the SLC ordinance.

One can have "faith" that sexual orientation is real..."faith" that someone is "born that way"...and then there is scientific and medical evidence. There is lots of faith that all this exists...and ZERO real evidence.

Now, I'm a person of faith too so I can't discount faith's power to help someone endure life. But we're talking law and policy here.