I would never deny the continuing and often harsh reality of anti-gay discrimination, especially for kids. And I would agree with anyone who points out that allowing gays to sue discriminators in federal court is fair and reasonable. (Federal antidiscrimination law, after all, already protects other groups, like Christians, that endure far less social hostility.) But at this point, the right to file federal lawsuits is unlikely to make a big difference in gay people’s lives, and the 1970s civil rights model has become a warhorse in need of retirement.As Amp points out, this puts the cart way, way before the horse. It reeks of someone who lives in a climate where gays really have made huge strides towards acceptance, without regard for people living in locations where anti-gay prejudice still looms large and really does affect employment (and housing) opportunities. That being said, I think I understand the theoretical impulse here, and perhaps can explain it in a way that explains why it can't apply to gays and lesbians at this stage in the political game.
The next Congress should be the second since 1994 when ENDA is not introduced — this time because gays ourselves have decided to move on. A country of gay spouses and parents and service members and veterans is a country of gay citizens, not gay victims. Ten years after Goodridge is a good time to recognize and celebrate that change.
Take two of my identities: I am Jewish, and I am (former) high school athlete. One of these two identities enjoys protections through anti-discrimination law, and one does not. One of these two identities also is one where I feel concerned about my status as a full and equal member of the polity, while the other elicits no such anxiety.
It may seem odd that the identity that enjoys greater legal protection is also the one whose position feels more fraught. Indeed, the vast majority of our identities garner no specific formal legal protection whatsoever. And it's not because they are not the subject of regulation, even controversial regulation, either. Athletes can face significant regulations (such as mandatory drug tests, or heightened academic requirements), and they may have strong views about the propriety of these ordinances. Lawyers (to take another example) face a massive array of regulations governing their conduct and certainly have no qualms about arguing over them. These arguments, however, occur without the backstop of any formal legal regime recognizing specific protections against unfair treatment for the identity. We fight these battles with nothing more than the normal tools of politics.
Yet this thought does not fill most of us with dread. To the contrary, it strikes us as utterly unremarkable. It is normal that most of our identities will be regulated and protected through nothing more than the normal channels of political and social dialogue. The need for something like anti-discrimination laws suggests a particular aberration from this norm -- recognition of a particularly dangerous or fraught area of controversy where the normal rules cannot be trusted.
For this reason, it is wrong to view the end-game of anti-discrimination work as the enactment of a robust array of legal protections. As one jurist put it, anti-discrimination laws "acknowledge—rather than mark the end of—a history of purposeful discrimination." Hernandez v. Robles, 7 N.Y.3d 338, 388-89 (N.Y. 2006) (Kaye, C.J., dissenting). Or to quote myself:
If one only has protections because one devotes every spare vote, dollar, resource and minute to secure them, one can hardly be said to be an equal. Equality comes when equality is normal — so normal, that you don’ t have to be perpetually on your guard to defend it. So normal that it wouldn't occur to anyone to try and take it away.What Rauch is trying to get at is the securing for homosexuality the status of a "normal identity" -- one in which their equality is so natural that it need not be remarked upon, and where the natural flow of social and political channels will regulate matters of sexual orientation in a manner which, if not agreed upon by all, at least is not viewed as something extraordinary.
Needless to say, we are not there yet. And Rauch makes a huge mistake by jumping the gun. Indeed, part of being a normal identity is that one can insert yourself into the political process and secure benefits (same as other groups do as a matter of course), so it is antithetical to the notion to throw up barriers to a group's particular political ambitions. That is to say, it is not necessarily the case that a "normal identity" never receives protective measures, it is simply that if they do so it isn't seen as any more remarkable than, say, dairy farmers gaining legislative protections -- we might debate about it or oppose particular proposals, but it is not viewed as a high stakes deviation from politics-as-normal.
In sum, I see the appeal of Rauch's endpoint. He's just wrong to force the issue.