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
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,
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.