Gay Rights Are Human Rights

Earlier this week, President Obama issued a memorandum on “Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies.” The memo requires all hospitals that participate in Medicaid and Medicare to (1) Allow patients to designate who is able to visit them, and (2) Follow the advance medical directives of their patients, such as durable powers of attorney and health care proxies.

Yesterday, a Circuit Court Judge in Arkansas issued an order striking down an Arkansas law that prohibits any unmarried person who has a non-platonic relationship with someone they live with from either adopting or fostering a child.

These two decisions are being trumpeted as victories for gay rights, as they should be. But the gay rights promoted by these decisions are only a component of the much broader category of human rights that are being recognized here — the associational rights of all persons. In other words, the decisions recognize peoples’ right to establish interpersonal relationships in the manner that best serves their individual needs, and not in the manner dictated by social tradition. In a free society, we should be free to choose which relationships we want to have with which people, and the degree of importance to be attributed to each of those relationships. The government has no business in deciding on everyone’s behalf which sorts of relationships “count” — i.e., only those between kin and those between opposite sex spouses.

The Executive Memorandum issued by Obama was a no-brainer that should have been done decades ago. Hospitals do not operate on the free market — people just don’t get to pick and choose hospitals based upon the associational rights they recognize. In the case of sudden injury, people can be transported to a hospital not of their choice. Or, in the case of rare conditions that require a specialist facility only found in a handful of hospitals across the country, a patient will have no effective ability to choose a hospital based on whether or not they will allow a partner to visit.

In a case like that, I have no problem with the government ordering hospitals to respect patient’s wishes. Hospitals that mandate only kin are allowed to visit are substituting a patient’s actual preferences (or even contractual specifications!) with an idealized, moralistic vision of who a patient should prefer to visit them.

The issues raised by the Arkansas Act — which is “An Act Providing That An Individual Who is Cohabitating Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less than Eighteen Years Old” — are not quite so cut and dry. Although the state has no legitimate interest in dictating people’s personal relationships, the state very much does have a legitimate interest in protecting the best interests of the children placed in its care. The trick, then, is to prevent the government from using its interest in children’s welfare as a means of infringing upon rights they have no business messing with.

In Cole v. Department of Human Services, the judge decided that the U.S. Constitution was not implicated, but that the statute violated the Arkansas state constitution’s protection of privacy rights.

Under the U.S. Constitution, the right to adopt or foster a child is not fundamental, and that cohabitating people are not a not a suspect class. Therefore, rational basis review was to be applied. Therefore, the Arkansas Act could only be examined under rational basis review, which means the ban on adoption by a cohabitating person is constitutional so long as it is ‘rationally related to a legitimate government purpose.’ This is a very easy test to pass — under rational basis review, even if it’s very obvious that the legislature was talking out of it’s ass when it made up a piece of legislation, so long as a judge can squint at it and conceive of some sort of logical purpose that the legislature could have had, the statute will be allowed.

The state’s theory was that “cohabitating environments, on average, facilitate poorer child performance outcomes and expose children to higher risks of abuse.” Although this is an overbroad and less than scientific assumption, under a rational basis review, it’s sufficient. I’m a little skeptical, however, of the judge’s blithe assumption that rational basis review applies here.

First, the idea that no “fundamental right” is at stake doesn’t square with the judge’s analysis under the Arkansas constitution. The Arkansas Adoption Act was invalidated for violating the “fundamental privacy right to private, consensual, non-commercial sexual activity” under Arkansas’ constitution. This sounds awfully similar to the same fundamental privacy right protected by the Federal Constitution that the Supreme Court has recognized in sodomy and contraception cases.

Second, I’m not completely buying the idea that “cohabitating couples” are not a suspect class. Under the Equal Protection clause, federal laws addressing “illegitimates” are reviewed under an intermediate level of scrutiny. I wonder if perhaps this precedent could be turned around and used to advance the argument that the parents of out of wedlock kids are themselves semi-suspect class. After all, at its heart, the court’s illegitimacy jurisprudence truly is truly one about associational rights — i.e., whether or not the government can decide, ex ante, for all people, that relationships with out of wedlock children are not as significant as relationships with children from wedlock.

So given all that, I’m not really convinced that the judge had to decide this case based upon the Arkansas Constitution and not the U.S. Constitution. Then again, this would be a pretty effective way of possibly insulating the case from review by SCOTUS…

Constitutional law aside, the Judge’s invalidation of the Arkansas Adoption Act was not specifically about gay rights, but about the private association rights of all persons. For instance, in the following scenario, a straight person is just as adversely effected by the law: Say that both of a child’s parents die. The child’s aunt then wants to adopt her niece or nephew, but she is living with her long term boyfriend, whom she has been a stable relationship with for ten years. Under the Arkansas Adoption Act, she is prohibited from doing so.

It is not the state’s place to mandate the interpersonal relationships people must have in order to enjoy equal protection under the law. Gay or straight, the government has no legitimate interest in who we decide to invite to our holiday dinners or who we choose to make a home with. Although I’m happy to see ever greater protections afforded to gay Americans, that is only the beginning, not the end, of the fight against governmental coercion in peoples’ personal relationships.


Gay Rights as Economic Policy

Whether or not sexual orientation can be made a protected class by Virginia agencies has been a very prominent news topic the past few weeks. When Governor McDonnell eliminated anti-discrimination protections for gays and lesbians, I doubt he expected a political quagmire to erupt. The heat on McDonnell only got worse last week when Attorney General Cuccinelli issued an opinion stating that Virginia’s public schools and colleges were prohibited from treating sexual orientation as a protected class.

Those opposing Governor McDonnell policies, however, now have a new argument to add to their list of reasons reversing McDonnell’s exclusion of gays and lesbians from state protection: economic policy.

Although gay rights have long been debated on the basis of morality, human rights, and equality, the current debate in Virginia has started to strike a rather pragmatic tone. While the Falls Church School Board reacted to Cuccinelli and McDonnell’s recent actions by defying the State government and adding gays and lesbians to its anti-discrimination policy, the Falls Church Chamber of Commerce has released a (draft) statement focusing on the fiscal considerations. If McDonnell’s policies stand, they argue,

“[M]any new and relocating businesses will choose to avoid Virginia because this posture on discrimination (by Cuccinelli-ed.) will have a profoundly chilling effect on prospective employees, contractors, vendors and customers… Surveys confirm overwhelmingly that those seeking employment in the high-tech sectors of the national economy, such as defines the predominant economic growth of Northern Virginia, hold very strongly to values of equal rights and justice for all persons.”

This is more than a hypothetical. Northrop Grumman, a California-based company, is planning to move to the East Coast — the mid-Atlantic, to be precise, and Virginia, Maryland, and D.C. are all courting the corporation. Last month, a Maryland representative wrote a letter to Northrop suggesting that Maryland would make a better new home for the company, as it does not have the exclusionary policies Virginia does.

Yesterday, however, a State Senate panel voted to add the following language to a bill designed to encourage Northrop Grumman to relocate to Virginia: “The Commonwealth of Virginia maintains an ecumenical atmosphere in its sexual orientation hiring policies in the private and public workforce.”

And passing this sort of legislation makes sense, from the perspective of a state seeking to vitalize the local economy. On first blush, whether or not Virginia provides protections to gays and lesbians wouldn’t seem to be an important business consideration, as State discrimination policies have no effect on a private corporation’s own internal regulations. However, it could make a very real difference in acompany’s operations, through affecting the signaling strategies the company hopes to adopt as well as the quality of the local talent it hopes to recruit. A state with an open minded and modern view on gays rights may well prove to be a better source of the dynamic, modern work force that corporations need in order to synergize and break the paradigm, or whatever else it is big corporations do.

A company could also help establish a “hip and vibrant” image by settling in a more socially progressive state in order to improve its corporate branding. For instance — and no offense intended to my home state’s lovely next door neighbor — but if Google were based in Alabama instead of Northern California, it would probably not have succeeded in attracting a lot of the young, college-educated talent that it does have.

Unfortunately, the gay-friendly language was eliminated from the Bill today, showing that Virginia is not quite ready to embrace gay rights as a fiscal policy initiative. This whole episode, however, does indicate the potential of using market forces as a way to promote human rights.


Why Obama Moves at a Snail’s Pace on Gay Rights: It’s Hard to Negotiate When Everyone Knows You Have No Where Else To Go

Obama’s speech on Saturday annoyed me, but it was a subdued, anticipated annoyance. Everyone knows Obama’s done jack all for gay rights and he has no plans on immediately addressing the issue. The only semi-firm commitment he made was to not let his nominees or appointees lose their jobs on the basis of opposition to their sexual orientation — and if he actually keeps that pledge, well, it’s a start.

But this whole hoopla over the “internet left fringe,” no matter how significant the misstatement truly was or whether it was just an extremely clumsy paraphrase by NBC’s Harwood, set me off like dry tender. And apparently it had the same effect on all those pajama-clad bloggers.

Obama’s generically supportive speech leaves a lot of room for criticism:

“I greatly appreciate the support I’ve received from many in this room. I also appreciate that many of you don’t believe that progress has come fast enough. I want to be honest about that. Because it’s important to be honest amongst friends.”

Man, Obama is good at this whole “let’s be candid” thing. See, he’s admitting, indirectly, that he’s been a little slow; he’s softening the blow for when his detractors introduce that irrefutable criticism. And, “It’s not for me to tell you to be patient,” Obama acknowledges. He’s not counseling patience — in a round-about, politician-speak way, he’s telling supporters of GLBT rights that they need to keep doing their thing and not sit around waiting for Obama to get on board. Because it is more efficient for him if he waits for a more opportune time to set his sights on the issue.

The problem is, the problem has always been, gays have no where else to go. They can’t redirect their monetary donations, they can’t start voting against the Democrats — because their only other option is a party that has made clear its choice to court the vote of those motivated by fear and prejudice rather than of those motivated by a desire for equality and human rights. So no matter how much Obama fails to come through for the GLBT wing, he knows — they ain’t going anywhere. Most people aren’t going to vote for someone who denies their equal dignity as a human being, just to make a political point.

Sure, they can reduce funding and grassroots support, but that’s a cost he is clearly willing to accept.

And you know what, I get it. I really do. Obama’s got a giant agenda, and a limited amount of time to do it. There are certain temporal orderings of the issues to be addressed that will allow more overall to be accomplished.

And I don’t necessarily disbelieve that Obama fully intends to come through on his promises — some day. But he has deftly avoided providing any sort of a time table he can be held accountable to, and if I had to guess, plans on making this a cause to take up when/if he’s a lame duck in his second term. By then, not only will there be less political risk for him, but the voter support for such a move will almost certainly have increased as well.

But that’s seven goddamned years away. I liked the fierce urgency of now better.