From: rick@eaglet.rain.com (Rick Lindsley)
Subject: Re: Wanted: Post election comments on Prop. 9
Organization: Quagmire Annex
Date: Sun, 15 Nov 1992 21:00:57 GMT

pat@rwing.UUCP (Pat Myrto) writes:

    Any law that sets aside a specific group or groups for special
    consideration that are not afforded the rest of us creates special
    rights.  Even if that law provides special sanctions if ORDINARY
    rights are denied a certain group, by the fact that it gives that
    group avenues of redress unavailable to the rest of us grants that
    group special rights.

I've been trying to grasp the concept of "special rights" and I think I
might finally see the angle you're coming from.

A set of laws are passed that say, generally, hiring and firing of
employees must be for job related reasons. Seems pretty clear. Then one
day, an employer argues, "but if I HIRE that black person, nobody will
EAT at my restaurant! Clearly that's job related!" And while, in some
environments the first might actually be true, the courts decide that,
no, the second does not follow. The person's right to a job overrules
the employer's choice of clientele. And a precedent is set, and
eventually a law passed, that you cannot discriminate on the basis of
race except in some very narrow situations.

Have "special rights" been granted? It might seem so. What *I* think
has happened is that a clarification has been made. It was assumed
everyone understood what "job-related" reasons meant. It became
apparent that that actually meant quite different things to different
people. So somebody (the courts and legislatures) stepped in and said:
"The following things are not, and never can be, job-related."

You could argue that the extra laws were unnecessary, since all you had
to do was go to court and prove that you had been discriminated
against. It was already illegal, right? But that takes both time and
money, which you cannot retrieve (and sometimes don't have to begin
with.) It can be subject to the whims of the district in which you
file, the judge which hears your case (more appeals!) or even his or
her bout with indigestion the day your case is heard.

In other words, it doesn't always afford equal protection.

Spelling out these laws made the statement: "This is exactly what we
meant. Deal with this in a uniform manner." And so it only became
necessary to show that it happened .. not that it happened AND was job
related.

This statement has been made for race, religion, sex, and age (to name
a few.) For quite a while that statement seemed unnecessary for those
categories, but we've now decided they are. Am I upset by these
"special" affirmations of these groups'' rights? No, because I do agree
that these are rarely job-specific requirements and tend to restrict
opportunities for some groups. I welcome the courts' and legislatures'
efforts to remove economic and procedural obstacles to the appropriate
remedy. This is because I agree with the problem, and I agree with the
remedy. Others, even today, still do not agree on either the problem or
the remedy, and may view these as "special" rights. It's a combination
of both belief and nomenclature.

Measure 9 would have gone the other route. It would have specifically
said "it's ok to discriminate against people for *these* reasons" and
in fact encouraged, nay, *required* the state to do so. It specifically
*removed* equal protection and created a special class of people that
were legislated to be lower on the societal ladder than others.

Currently, sexual preference is in the "general" category: "don't
discriminate for non-job related reasons." As more employers decide to
consider sexual proference a job-related reason, the courts (and/or
legislatures) will need to draw a line and make a statement, even if
only in precedent, not law. Measure 9 was one attempt at that, and it
failed, thankfully.

Is it time to try and offer a measure that swings in the other
direction? Up until now a large number of people though it unnecessary
(or didn't care.) 3 cities in Colorado thought it was a good idea, but
were overruled by a state referendum. A large percentage of people in
Oregon didn't like the sound of discrimination, but an almost equally
large percentage did, too.

Perhaps it is time.

I know one thing though. As long as the winning percentage is less than
60%, maybe even 65%, the losing side will continue to bring the subject
up for referendum again as often as the law permits.  I continue to
think an exchange of reasonings and views will win more of the
fence-sitters than an exchange of slings and arrows.

Rick