From: roger@crux.Princeton.EDU (Roger Lustig)
Subject: Re: Homophobia (really not about  Homeschooling)
Originator: news@nimaster
Reply-To: roger@astro.princeton.edu (Roger Lustig)
Organization: Princeton University
Date: Sat, 9 Jan 1993 03:29:26 GMT

In article <C0KAs8.F84@watserv2.uwaterloo.ca> msmorris@watsci.UWaterloo.ca (Mike Morris) writes:

>Roger Lustig writes at me:
> Read what she says.  She points out that her formulation DOES privilege
> those forms of observance NOT enumerated.

>Huh? This is utter nonsense, Roger. The measure would say no privileges
>and no claims of discrimination based on certain kinds of religious
>observence. It doesn't say special privileges shall be given to other
>kinds of religious observence. 

Well, that's how law works.  If it doesn't prohibit something, it's not
prohibited.

And allowing discrimination claims -- i.e., not prohibiting them -- 
is a special privilege.

>And I think it's quite clear that
>such a law itself (i.e. one granting special privileges to some
>other religious observence) would itself fail on First Amendment
>grounds.

Fine.  Is that good or bad, though?  SHOULD we ban discrimination
claims based on religious observance?  Isn't the First Amendment --
though it guarantees the right to free association -- stepping on
our right to discriminate on religious grounds, i.e., our right to
choose with whom *not* to associate? 

>RL:
>                                           Her formulation is not 
> redundant to the First Amendment; it VIOLATES it.

>I'm sorry, but I don't think it does. I think rather the legal
>allowance of claims of discrimination based on religious beliefs
>in wrongful termination suits in the first place violates the
>First Amendment (it being a governmental intrusion upon the
>religious conscience of the employer).

Ah, so I was right.  So the First Amendment allows employers to
starve a religious group out of existence .  

The jurisprudence of the Amendment says otherwise.  It says that 
religious matters are not the employer's business in the first 
place.  

>I said:
>  I would think that it would have been much better if CO2 had said
>  ``Sexual Orientation''.

>Roger replies:
>  Why?

>Because this excludes even more grounds than CO2 does from the special
>privilege to claim discrimination in employment.

Yet has the same effect, since only a suicidal employer would fire
people for being heterosexual.  Result: discrimination against gays
continues.             

>RL:
>       Why should one not have the right to claim discrimination on
>  grounds of sexual orientation?  

>Because the employer ought to have the right to free association.
>The point is, it's his business, his property, not fundamentally
>a grant made by him from the State.

Is the *job* entirely his property?  I think not.  The job is a contract
between the employer and the employee; if such a contract must necessarily
yield to the employer all rights to determine --on pain of termination --
the lifestyle of the employee down to the last detail (imagine getting
fired for eating meat, or for driving on the Sabbath, Mike!) then your
concept of liberty is incompatible with the concept of employment, or
at least it is impossible to have both liberty and employment.

These things aren't just abstracts to be pushed around on a chessboard,
Mike.  The idea of liberty isn't a parlor game, and its implementation 
is not done in absolute, abstract terms.  It's a messy business, as they
say of democracy -- and just waving your hand and making up rules doesn't
mean that the actual lives of the actual people you speak of will have 
any resemblance to any form of liberty that an actual human being has ever
aspired to.

>RL:
>  Why should a corporation reserve the right to fire, say, a gay 
>  nightwatchman? 

>Because it wants to?

Great.  So liberty involves the ability to ruin the lives of others
at no notice, for any reason whatever.  We are not talking about 
chess pieces, Mike!

>RL:
>                  And to do so at its caprice? 

>Ditto.

Fine.  Result: one corporation with no change, one nightwatchman out
of work.  If other corporations take the same tack, one dead nightwatchman.

>RL:
>                                                Why this legal 
>  encouragement and sanction of blackmail?  

>Why your own legal sanction of an individual Right to employment (i.e.
>at someone else's expense)?

No such right -- just the right not to be fired for the way one lives 
one's life off the job.  Where did you read such a right into my argument?

>RL:
>  NO CLAIM OF DISCRIMINATION -- what more do you need?

>I need someone to explain to me *why* non-discrimination
>ought to be considered a Right.

Because liberty includes the right to live one's life as one chooses.  
Not as one's employer chooses.  Or as a group of employers chooses.
It involves the right to privacy -- to draw the line at one's door 
and say, no further -- what I do at home affects only me, and shall 
not be your business unless you can show reason.  

Without this the individual has no rights whatever -- those are then
reserved for those powerful enough to coerce the individual into acting
one way or another.

>RL:
>  Yet the two statutes were promoted by the very same political groups
>  with the same political agenda.  All theorizing about rights aside
>  for a moment, don't the real political implication of these statutes,
>  and the political goals of those who promote them, give you pause?
>  Don't rights deserve a little protection, i.e., a wall built around them?

>You and I do agree about there being a Right to equal opportunity
>in employment.

We do not.  You deny this right -- you allow equal opportunity to be
mocked.

>You also glibly elide the crucial difference between the two measures.
>One measure gives government a mandate of extra power and purpose
>to correct what right-wingers see as a social problem. I mean
>besides the moral repugnance of these right-wingers' agenda, it's
>worth voting against just because it aggrandizes government. The
>second measure takes some power away from government. Not enough power,
>but taking any power away from government sounds good to me.

Including the power to judge?  You're going far beyond all but the wildest-
eyed libertarians I've met here.  Do you really think you can wrap yourself
in the mantle of Jefferson and claim that government should have less power
to prosecute crime and to enforce the decisions of its courts?  

The Colorado measure does NOT take away power from government in any
significant form.  It does, however, empower the courts and the rest
of government to be used to further discrimination.  The laws in 
question -- the statutes nullified by CO2 -- RESTRICTED government (and
others) from denying equal opportunity.

>*Of course* I find the political agendas of some of these groups
>outrageous and repugnant. *Of course* this gives me pause. But
>so does the opposition to these measures of groups whose
>agendas I consider equally outrageous and repugnant.

Such as?

>I said:
>  For what little it is worth to this discussion, Evelyn, (but
>  since it's in your .sig) I happen to believe that the military
>  ban on homosexuals is both stupid and wrong.

>Roger responds:
>  Why?  How can you justify that?  How can gays claim discrimination
>  in the military but not in Colorado?  

>Why are you blind to the distinction I have maintained between moral
>wrong and something that warrants legal sanction? For the record, 
>I do not believe that mere stupidity or mere moral wrong warrants
>legal sanction. 

So?  Discrimination of the sort under discussion here is not merely those
things.  

>Legal sanction in the private sector is only appropriate
>when the moral wrong corresponds to a violation of some human Right.

The right to come to justice would not seem to be such a right.  Funny,
it's practically the first one on *my* list of natural rights...

>Do you have a problem with this?

I have a problem with your approach to rights as high-flown abstracts 
unrelated to the pressing issues that made us take up the study of
rights in the first place.
Roger
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