University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2001 A Better Analogy: "Jews," "Homosexuals," and the Inclusion of Sexual Orientation as a Forbidden Characteristic in Antidiscrimination Laws Marc A. Fajer University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Civil Rights and Discrimination Commons, and the Law and Society Commons Recommended Citation Marc A. Fajer, A Better Analogy: "Jews," "Homosexuals," and the Inclusion of Sexual Orientation as a Forbidden Characteristic in Antidiscrimination Laws, 12 Stan. L. & Pol'y Rev. 37 (2001). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. A Better Analogy: "Jews," "Homosexuals," and the Inclusion of Sexual Orientation as a Forbidden Characteristic in Antidiscrimination Laws by Marc A. Fajer issues such as openly gay and lesbian I. INTRODUCTION A properly n zanced law of people serving in the military, A key issue in the struggle proponents of inclusion often for over civil and political rights antidiscrimijnation would analogize race and sexual orientation lesbians, bisexuals and gay men is protect the decisions of ("the race analogy"), pointing out whether to include "sexual both "J ws" and similarities in the exclusionary orientation" in the list of forbidden treatment of African-Americans and characteristics in traditional anti- "homosexu 7ls" to come of lesbians, bisexuals and gay men discrimination statutes. During the out of the closet by ("les/bi/gay" people).2 However, 1990s, this "inclusion" issue was ze mind-set of opponents of inclusion dispute the fought (with mixed results) in state focusing on t validity of the race analogy for legislatures, municipal councils, the actors outside the closet several reasons. First, they view public elections on state or local door and the consequences race as an immutable status, and initiatives and repeal measures, and sexual orientation as chosen even in the United States Congress. of their actionis, not on the conduct.3 Second, they argue that Eventually, the attempt by the state details of the identity of the the economic and social of Colorado to enshrine a ban on consequences of discrimination are inclusion in its constitution led to person huddrled fearfully much more severe for African- the Supreme Court's decision in insiide. Americans than for les/bi/gay Romer v. Evans,' which is clearly people.4 Third, they argue that the Court's most gay-friendly although race is usually revealed by ruling to date. appearance, people can choose not to reveal their sexual During public debate over inclusion and related orientation, and thus les/bi/gay people can avoid discrimination in a way that most African-Americans Marc A. Fajeris a Professor of Law at the University of Miami 5 School of Law. The author wishes to thank the Philadelphia cannot. Lesbian & Gay Academic Union for allowing him to present an The difficulties with the analogy to race are important because race earlierversion of this essay; Clark Freshman, Susan Stefan, and has been the primary paradigm underlying the Shari Wilcauskas for helpful input; Michael Birnholz, Keith development of American antidiscrimination Nichols, and especially Shahar Vinayi for able research law. However, advocates of inclusion can respond assistance; Mary Coombs, Lili Levi, and Ralph Shalom for crisis to criticisms of the race analogy by management assistance well beyond the call of duty. He emphasizing the closer analogy to another group whose dedicates this essay to the memory of his grandmother,Esther protection by antidiscrimination laws is relatively non- controversial: Fajer, who, with pride and strength, survived the experience of Jewish people ("the Jewish analogy"). hiding. Although it has not been an important part of the VOLUME 12:1 2001 MARC A. FAJER 5 discourse about antidiscrimination statutes, parallels voiced by opponents of military racial integration.1 between the experiences of Jewish people and those of However, opponents of inclusion vociferously reject the les/bi/gay people have been noted frequently in other race analogy,16 generally making one or more of three contexts, particularly by people who identify both as important arguments. Although one clearly could take Jewish and as gay or lesbian.6 For example, writer Eric issue with the way opponents sometimes articulate them, Rofes said, "Nothing prepared me better for my life7 as a each of these arguments does suggest important ways in gay activist than growing up as a Jew in America.", which the treatment and understanding of race and of In this essay, I explore the analogy between "Jews" sexual orientation in American society differ. and "homosexuals" 8 and argue that it is particularly useful First, opponents of the race analogy often contrast in the context of the debate about the inclusion of sexual race, which they view as an immutable status without orientation in antidiscrimination statutes. 9 In Part II, I moral content, to homosexuality, which they see as note some of the difficulties with the race analogy and immoral chosen conduct.'7 For example, during the gays- argue that these difficulties are not presented by the in-the-military debate, General Colin Powell argued that Jewish analogy. In Part III, I address some of the parallels "[S]kin color is a benign, non-behavioral characteristic. that bolster the Jewish analogy, focusing primarily on two Sexual orientation is perhaps the most profound of human ways in which Jewish and les/bi/gay identities are behavioral characteristics. Comparison of the two is a similarly problematic: the question of who belongs in each convenient but invalid argument."' 8 Whether category is highly contested, as is the nature of the homosexuality is based in biology or is entirely voluntary category itself. In Part IV, I elaborate several of the ways conduct is highly disputed.' 9 However, this very dispute in which the classification uncertainties described in Part makes it different from race, which is mainly treated as an III help support a culture of muffling identity-of immutable status in American society.2 ° "closeting"-that has a variety of destructive Second, opponents argue that race discrimination is consequences. I conclude by arguing that the analogy is more severe and has harsher social and economic effects not merely a useful rhetorical tool for advocates of than discrimination based on sexual orientation. 2' Loretta inclusion.'0 It also helps demonstrate that Neet of the Oregon Citizen's Alliance, a group working to antidiscrimination laws should protect not only minority prevent inclusion of sexual orientation in state and local status, but also public expressions of non-mainstream antidiscrimination statutes, argued of "homosexuals": aspects of one's identity. They're not politically disadvantaged, they're 1I. THE RACE ANALOGY AND ITS not politically incapable of politically DISCONTENTS advocating for themselves by any way shape or Antidiscrimination law in the United States initially form. They are the most powerful lobby in the arose out of the need to protect African-Americans from United States today. Their situation is nothing various forms of state and private race-based like what it was for black people in America.. discrimination. In their most common form, anti- they could not advocate for themselves. discrimination statutes and ordinances bar decision- Politically, they were segregated from making on the basis of a list of prohibited bathrooms, from public fountains, they were characteristics." Advocates for additions to these lists not allowed in certain businesses .... they had commonly rely on analogies to race and to the African- to sit in the back of the bus, all those sorts of American experience.12 Advocates for gay rights are no things. You don't find that for the homosexual 3 exception.' For example, during the very public "gays- community. 22 in-the-military" debate in 1993, some of those favoring inclusion of sexual orientation made the race analogy the The claim of political strength is dubious given cornerstone of their arguments.14 recent overwhelming defeats on issues like same-sex The use of the race analogy by supporters of marriage in popular elections, state legislatures, and in inclusion is not surprising, as there are important parallels Congress.23 But Neet is correct that, whatever the extent between the struggle for racial equality and the struggle of social ostracism that has accompanied perceptions of for gay rights. Particularly in the context of the military, homosexuality, anti-gay discrimination has never been as drawing the race-sexual orientation analogy is logical explicitly and systematically embedded in the American because opponents' concerns about gays in the military- legal system as has racism. 24 Moreover, the long-term majority discomfort with living in close quarters with the effects of anti-gay discrimination include neither a high minority and the supposed resulting harm to unit cohesion degree of spatial segregation nor a nearly permanent and morale-are strikingly similar to those concerns underclass, both of which are closely associated with race