Three fundamental concerns are driving the formation of the new citizens organization:
I. The negative impact of special rights initiatives on all businesses and property owners, with a particularly negative impact on faith- based and faith-inspired businesses and property owners.
II. The negative impact of special rights initiatives on every citizen's constitutionally protected rights to freedom of expression, freedom of religion and freedom of assembly.
III. The negative impact of the practice of homosexuality on the individuals who practice it and on the rest of the society.
The main multifaceted emphasis of the group is to defend Traditional Marriage as 'between one man and one woman', to respond to the controversy at the University of Notre Dame regarding homosexual activism at several levels, to respond to 'special rights for homosexuals' ordinances as they come forward in the Region and to facilitate help and ministry for those suffering from the ill effects of the homosexual lifestyle.
Human rights ordinance is imprecise, open to abuseMICHIANA POINT OF VIEW
CHARLES E. RICE
July 7, 2006
South Bend Common Council Bill 29-06 would amend the human rights ordinance to add "sexual orientation" and "gender identity" to the grounds on which discrimination is forbidden in education, employment, public conveniences and accommodations and the purchase or rental of real property including housing. The bill responds to a finding of the South Bend Human Rights Commission that "Gays, lesbians, bisexuals and transgendered persons have experienced mistreatment based on their GLBT status."
The grounds on which the ordinance now prohibits discrimination -- "race, religion, color, sex, disability, national origin or ancestry, and familial status in housing" -- are based on a physical characteristic or an objectively discernible familial status or religious profession. The bill, in contrast, combines an imprecision in its definitions with an encouragement of oppressive litigation and coercion.
The bill forbids discrimination "based on" gender identity or sexual orientation. It states that: "Gender identity means an individual having or being perceived as having a gender-related self-identity, self-image, appearance, expression or behavior different from those characteristics traditionally associated with the individual's assigned sex at birth."
A person's identity as to gender would not ordinarily become an occasion for discrimination unless that identity were overt or otherwise affirmed by that person so that it was perceived by the offender. But the bill's language of "having or being perceived as having" would permit a claim of discrimination "based on" gender identity where the alleged offender had not "perceived" that the claimant had the prescribed "self-identity," "self-image" or other requirement. Or if the claim asserted that the alleged offender had "perceived" the claimant's gender identity, the bill leaves us in the dark as to the degree of knowledge on the part of the offender necessary for him to be held to have so "perceived." Would actual knowledge of the claimant's "self-image" or other characteristic be required? Or would it be enough if he merely should have known?
And what, incidentally, are "those characteristics traditionally associated" with a person's "assigned sex at birth"? The Human Rights Commission evidently would make that call. What criteria would it use? The bill does not limit the persons lacking those characteristics to persons who are gay, lesbian, bisexual or transgendered. Who else can make the "gender identity" team? And how do the burden of proof and the burden of going forward with evidence operate on the varied aspects of these issues? The bill does not tell us.
The bill's definition of "sexual orientation" raises similar problems. "Sexual orientation means an individual's actual or perceived identity or practice as a lesbian woman, gay male, bisexual person or heterosexual person." The bill here protects not merely "identity" but also the "practice" of the orientation. The bill's definition of "gender identity" similarly includes "behavior."
The bill's sweeping definitions would evidently extend its protection to all the possible varieties of "gender identity" and "sexual orientation," including not only GLBT, but also relations amounting in effect to polygamy (one husband, multiple wives), polyandry (one wife, multiple husbands), polyamory (three or more partners where all have sexual relations with all the others), and, of course, bestiality.
The ordinance forbids "any person" to "discriminate against any other person in education, employment (or) access to public conveniences and accommodations." It applies, with exceptions, to employers of six or more. If the bill were enacted, with its protection of "behavior" and "practice," would an employer have to allow cross-dressing or other GLBT manifestations in the workplace, including a school as a workplace for teachers and staff? Could other employees, or parents of students, or other patrons in a restaurant, be held liable for discrimination or a denial of what the bill calls "equal opportunity for ... access" if they made comments, or manifested attitudes, offensive to the cross-dresser or other GLBT employee, teacher or restaurant patron? Would the employer, school or owner of the restaurant be liable for tolerating such behavior? Don't bet against these possibilities.
The proposed ordinance forbids discrimination in "all public and private schools." Religious schools may give preference to members of their religion in selecting students and hiring employees. The bill, however, exempts religious entities from the protections against "gender identity and/or sexual orientation" discrimination only "when such protections affect the definition, advancement of the mission(s), practice(s) or belief(s)" of the religious entity. Presumably the Human Rights Commission, subject to judicial review, would decide whether the entity is so affected, as it would decide, subject to review, other possible issues raised by the bill. In addition to specified money damages, the commission, in housing and employment cases, may award damages for "emotional pain, suffering, inconvenience, anguish, loss of enjoyment of life and other pecuniary losses, costs and attorney fees." The commission has power in all cases to order the offender "to take further affirmative action."
On housing, the bill excludes "rooms or units" in dwellings occupied by four or fewer families including the owner. The vagueness of this exclusion justifies Bishop John M. D'Arcy's conclusion that "a family in a duplex that is renting the other side of their home would ... be legally forced to lease to an openly homosexual couple or to an unmarried heterosexual couple regardless of their deeply-held moral convictions."
This bill is an aspect of the legal and political campaign to validate the homosexual lifestyle. "Efforts such as these," as D'Arcy noted, "have been followed in other communities by efforts to have public school children indoctrinated -- even as early as second grade -- to accept homosexual lifestyles and behavior as normal." The failure of a private or public school to offer such indoctrinating programs or courses could be argued to violate the bill as a denial of "access" by refusal to provide a welcoming environment to GLBT students, teachers and staff. Religious schools could be argued to be similarly obliged unless they could prove it would affect their "mission(s), practice(s) or belief(s)," as determined by the Human Rights Commission.
If there were a Dumb Legislation Olympics, Bill 29-06 would run away with the gold. As a legal work, it is embarrassing in its vagueness. Its imprecision and openness to abuse indicate that it is less a legal work that a politicized effort to advance the homosexualization of the culture. The bill should be withdrawn.
Charles E. Rice is professor emeritus at the University of Notre Dame Law School.
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