From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: The "Hate" Problem -- Amendment 2
Organization: University of Colorado, Boulder
Distribution: co
Date: Mon, 14 Dec 1992 05:02:17 GMT

In article <1992Dec12.202337.21558@mnemosyne.cs.du.edu> smorine@nyx.cs.du.edu (Suzanne Morine) writes:
>>...For example, consider
>>someone who is refused a job by one company, for reasons of sexual
>>preferance, but is hired by another company in the same town for the
>>same pay. In general, this person could not sue on the basis of
>>discrimination (having suffered no tangable harm). However, if there
>>was a specific law against such discrimination, the law's language would 
>>generally allow a suit, despite the lack of real harm. 

>They had to go through the trouble of finding another job for no just
>cause.  That seems unfair to me.

To some extent it is, but there is a reason courts usually insist on 
this kind of standing: First, to filter out the truely bogus suits
(if there is no evidence of material harm, there probably no harm at
all, material or emotional.) Second, a court of law can't change
past unfairness: They can only award damages based on the harm done.
If the victim of discrimination suffered only emotional harm (e.g.
found another job almost immediately at the same pay, etc...) then
there is very little the court could do, even if it heard the case
(Judges really hate to say, "You're aboslutely right, you were
treated unfairly, but there is nothing I can do about it at this
point.)

>But the determination, "real harm," seems irrelevant with Amendment 2.
>If the discrimination involved was by homosexual or bisexual orientation,
>Amendment 2 forbids the claim, regardless of harm.  Yes?

As far as the "no claims of discrimination" clause, yes. (Essentially
why I voted against it. That clause was an unacceptable singeling
out of a particular group, in my opinion.) However, the "special
status" clause does relate to the standing requirments of courts:
The _normal_ rule is that evidence of real harm is required. However,
many discrimination laws explicitly create exceptions: Certain 
parties, who are expected to suffer from discrimination are often
given automatic standing to sue. For example, if a landlord refused
to rent to a black man, he could be sued even if the refusal caused
no real harm or if there was no evidence that discrimination was the
cause of the refusal. (In this case, the landlord would probably
win in court, but he would still have to pay legal fees, etc...)
This sort of automatic ability to sue, without any evidence of
real harm, might be part of the "special" status refered to by
Amendment 2.

>Relatedly, if widespread discrimination is involved, I can understand
>putting the discriminatory factor on ordinances - as a specific effort to
>counter widespread unfairness.

I'm a little hesitant about this: If the discrimination is widespread,
then there is a large minority that sees nothing wrong with that
form of discrimination. A law on the subject would, essentially, impose
the moral judgement of the majority on a large, pro-discrimination
minority. In general, I think this sort of imposition of majoritarian
morals on a sizeable minority is something the government should
avoid (no matter how much I agree with the majority...)

>>The point is slightly moot: Gays are far more likely to suffer 
>>from this from of discrimination, so they benefit preferentially
>>from such laws.

>You seem to be against non-discrimination laws in general.  You
>can use the above argument for blacks, too.  That is, blacks benefit
>preferentially from non-discrimination laws for race: special rights.

These laws are, undeniably, laws intended to benefit blacks. However, 
I don't necessarily object to this. Certain details (such as 
automatic standing to sue) I disapprove of; as well as law that
create racial (or other irrelevant) distinctions (e.g. affirmative
action laws.) 

                                             Frank Crary
                                             CU Boulder

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