Tuesday, November 19, 2013

Normal Identities

Via Amp at Alas, a Blog, I see a column up by Jonathan Rauch that opposes efforts to pass expansions of employment discrimination protections to gays and lesbians. He argues that such laws are emblematic of "victim" politics -- gays needing protection -- rather than "responsibility" politics, whereby gays actively seek to take on public responsibilities. Gay marriage and service in the military are examples of the latter.
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.

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.
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.

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.


EW said...

Rambling far afield:

"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."

Fair enough. But can ALL minority groups become “normal” in this sense? If not, then (to paraphrase Derrick Bell), you seem to be arguing that the goal is not to achieve equality, but to achieve the status advantages of the privileged. Arguably the better goal is to promote equality by reducing the status advantages of the privileged, even when they are the majority.

Consider body-scanning technology at airports. I perceive a pretty objective (if perhaps overstated) security interest in ensuring that people are not smuggling contraband onto planes. But I also perceive a widespread, but vaguely justified, social norm against being seen naked. So which should prevail: the objective interest in security, or the social norm against being seen naked? It seems to me that the social norm is winning out.

Or consider global warming. There are well-supported behavior changes we might adopt to reduce the risks of global warming (requiring vehicles to have much greater fuel efficiency, for example), but they would be unpopular. So our preference for the status quo largely trumps these policy arguments.

Do we really want to add the norms of orthodox Jews to the list of social norms that prevail at the expense of evidence-based societal interests? Or should the goal be to reduce that list of norms, to render more things subject to rational regulation?

If a court finds that a condo association’s prohibition on decorating doors results in undue discrimination against orthodox Jews, would it also have to find the association’s rule against pets violates the rights of people who handle snakes or perform animal sacrifices as part of their daily religious practices?

Should the law be solicitous to people consuming peyote or passing a peace pipe as part of a “traditional” religious ceremony, but not a gang of guys passing a joint as part of a “traditional” ritual of stonerdom?

I have no objection to subjecting policies to heightened scrutiny – provided everyone gets the advantages of that same scrutiny. I don’t want to subordinate the interests of the orthodox Jew, but neither do I want to subordinate the interests of the Packers fan.

The topic is fraught with irony: The Pew Center reports that most self-identified Jews are secular. To the extent that we read the 1st Amendment that says that interests labeled “secular” are subordinate to interests labeled “religious,” this is a policy that will tend to subordinate the majority of Jews.

Furthermore, to the extent religious Jews wield political clout today, it’s often because of their association with fundamentalist Christians. While religious majorities are only too willing to ignore the interests of minorities, as the social power of religion wanes these majorities are now thrashing about for allies. The Us vs. Them boundary has shifted from 1) Protestants vs. all others to 2) Christians vs. all others to 3) religious vs. all others. Thus, today observant Jews are providing succor to the very factions that were most likely to have oppressed them in the past.

EW said...

Upon reflection, this post really should go with your discussion on Alas, a Blog. Sorry for the cross-post!

Benjamin Lewis said...

Your clarification of Rauch's aim is helpful.
I'm bothered by his characterization of ENDA as "the right to file federal lawsuits." There isn't any law whose purpose is lawsuits or whose primary effect is lawsuits. The point of ENDA or any other law, even if it provides cause, is to prevent the behaviors that would constitute cause. In this case, ENDA isn't about cause to file lawsuits, it's about making sure that people won't discriminate.
The language about lawsuits resembles the misrepresentations coming from the House GOP leadership. Assuming he is genuine here, why he is buying, or at least leading with, their distortions of ENDA?