Civil Rights, "Special Rights," and Our Rights

By Suzanne B. Goldberg

Don't be fooled by the "special rights" rhetoric of the Religious Right. There is something legally wrong with initiatives seeking to limit civil rights protections to exclude sexual orientation-based discrimination or create a situation in which gay and lesbian citizens have lesser rights compared with other citizens.

The Religious Right's campaign of misinformation has very effectively manipulated public understanding of civil rights and anti-discrimination law. Right-wing initiatives and referenda are both an attack against civil rights and attempts to further manipulate public understanding of civil rights. This makes a thorough knowledge of the constitutional issues raised by anti-gay initiatives especially important. Knowledge about civil rights is a key tool for building successful organizing and educational campaigns to defeat right-wing attacks.

Although right-wing initiatives are often promoted through vicious anti-lesbian and gay rhetoric, the ballot question presented to voters on election day doesn't ask whether voters like gays and lesbians. Rather, the question is: do you want to amend your constitution or city charter and restructure the legal foundation of government and its promise of civil rights for all people? In organizing anti-initiative campaigns and in responding to right-wing rhetoric, it is critical to keep focused on this point. Remember, this is not a lesbian and gay popularity contest--it is a vote on restructuring the government.

As we organize our campaigns against right-wing ballot initiatives and formulate responses to their rhetoric, it is critical that we review the basic issues at the root of the debate. For our purposes, civil rights are the rights guaranteed by law. These rights are guaranteed to US citizens and in many cases also cover non-citizens who live or work in the US. What is often referred to as the Civil Rights Movement actually focused on one aspect of civil rights--protection against race-based discrimination.

Different governmental bodies provide varying degrees of protection from discrimination on the basis of sexual orientation.

The US Constitution guarantees "fundamental" rights to all. These include, for example, freedom of speech, association, and religion, as well as a guarantee of the separation between church and state. The First Amendment to the US Constitution sets these guidelines:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A state constitution guarantees fundamental rights for the citizens and residents of each state. State constitutions are generally similar to the US Constitution. Sometimes they provide more protection for citizens. They cannot provide less protection or violate the US Constitution.

Federal civil rights laws provide specific protections against discrimination in a wide range of areas, including employment, housing, and public accommodations. These laws prohibit discrimination based on race, gender, national origin, ethnicity, age, disability, and some other characteristics. A federal civil rights law that prohibited discrimination based on sexual orientation would stop most of these initiatives in their tracks--our collective attention and effort to push for passage of this legislation is critical. There is such a bill that in the past has been introduced in Congress to prohibit discrimination based on sexual orientation, but it has never passed.

State civil rights laws are similar to federal civil rights laws and often protect against other forms of discrimination as well (e.g., marital status). Eight states and Washington, DC, have laws that prohibit sexual orientation discrimination in a variety of areas, including housing, employment, and public accommodations. Several other state legislatures were considering similar legislation in 1993.

Local civil rights ordinances (sometimes called human rights ordinances) are similar to state and federal civil rights laws and often protect against an even wider range of discrimination (e.g., political beliefs, etc.).

With all this information in hand, it is also important to know what civil rights are not about. You do not have a right to have a job or housing. You do have the right not to be discriminated against for an illegal reason (a reason prohibited by law or the Constitution).

So what are "special rights"? Actually, no such "rights" exist. In its initiatives, the Religious Right defines special rights to include: minority status, affirmative action, quotas, and special class status. However, these terms do not have a legal meaning in the way the Religious Right uses them.

Minority status and special class status are not legal rights. Affirmative action (sometimes misdescribed as "quotas" for hiring people who fit certain demographic categories) is a remedy, not a right. Affirmative action is a remedy for a historical pattern of discrimination. Where an affirmative action plan is in place, it is not supposed to be permanent; the goal is to remove the vestiges of discrimination, not to give some sort of "special right" to certain people.

If "special rights" don't really exist, what then is wrong with the initiatives that seek to prohibit states from banning discrimination based on sexual orientation? The US Constitution guarantees all people equal protection under the law. This means that a state cannot single out one group of people and treat them differently without a compelling reason for doing so.

The anti-gay initiatives would require a state or local government not to respond to the complaints of lesbians, gay men, and bisexuals about discrimination against them because of their sexual orientation. Any other group could bring its complaints to the government and try to obtain protection. Because the initiative would bar the government from responding to lesbians, gay men, and bisexuals only, the initiative changes the entire political process and burdens the political participation of lesbians, gay men, and bisexuals. It requires the government to treat gay and lesbian people differently from all other people.

Even if an initiative prohibited a state from protecting anyone from sexual orientation-based discrimination (including heterosexuals), the burden of that prohibition would fall on the people with a minority sexual orientation (lesbians, gay men, and bisexuals) and would therefore violate the Constitution's guarantee of equal protection.

Finally, it is important to remember that these initiatives target identity, not conduct. Even when an initiative focuses on lesbian and gay conduct or behavior, its effect is to prohibit protection against discrimination. When someone is fired for being lesbian or evicted for being gay, the firing or eviction is almost never tied directly to that person's conduct. Rather, we are targeted for discrimination and sometimes violence because of who we are--lesbian, gay, or bisexual--and what others assume we will do on that basis.

Suzanne B. Goldberg is Staff Attorney with Lambda Legal Defense. This article is an edited version of a speech given at a Fight the Right Regional Conference organized by the National Gay and Lesbian Task Force Policy Institute in conjunction with the Lambda Legal Defense and Education Fund, Equality Colorado, and Ground Zero in Denver, Colorado in March 1993. It previously appeared in the NGLTF publication, Fight the Right Action Kit. © 1995, Suzanne B. Goldberg.