Legal Statement from Alliance Defense Fund
M E M O R A N D U M
TO: City Commission of Manhattan, Kansas
FROM: Daniel Blomberg, Litigation Staff Counsel, Alliance Defense Fund
RE: Proposed Nondiscrimination Ordinance
DATE: August 24, 2010
______________________________________________________________________________
Introduction
The proposed nondiscrimination ordinance is highly problematic. It fails to protect the cherished religious freedoms of Manhattan residents, business owners, and religious organizations. Its onerous, unworkable scheme subjects business owners to excessive liability by creating “discrimination” laws that will be difficult to obey, easy to abuse, and would subject businesses trying to follow them to lawsuits. Moreover, unlike most legislation, the proposed ordinance does not respond to a demonstrated need for legislative action; no studies have been made public that show that any of the discrimination targeted by this ordinance exists throughout the Manhattan community. Thus, the considerable extra expense to taxpayers and local businesses that will be required by this ordinance are simply unjustified. In short, the enactment of this ordinance is a political maneuver to advance an agenda without regard for the religious liberties, constitutional freedoms, and conscientious business owners sacrificed in its wake. If enacted, this proposed ordinance is readily susceptible to constitutional challenge.
What’s particularly unsettling is that the only reason for the expensive proposed change to Manhattan’s current non-discrimination ordinance is to create special enforceable protections for individuals claiming sexual orientation or gender identity “discrimination.” Manhattan’s current law already protects every other class under the proposed ordinance, and the Kansas Act Against Discrimination, K.S.A. § 44-1125, allows the state to enforce protections for those classes. Thus, the “dramatic and significant change” is only being made to create new classes of protections—without any evidence that the protections are needed, affordable, or helpful to the citizens of Manhattan. And, in fact, the change will be unnecessary, expensive, and harmful.
This memorandum addresses a few, but not all, of the glaring problems with this proposed ordinance.
The Proposed Ordinance Sacrifices Cherished First Amendment Principles
The First Amendment protects the freedom of religion, freedom of speech, and freedom of association. However, as the United States Supreme Court has repeatedly recognized, the application of non-discrimination laws like the proposed ordinance directly infringe upon all these rights. In one case, the Massachusetts Supreme Judicial Court ruled that a private organization—the organizers of the St. Patrick’s Day Parade in Boston—engaged in so-called “sexual orientation” discrimination when they excluded a group advocating homosexual behavior from interjecting their message into the parade.1 In another case, the New Jersey Supreme Court ruled that another private organization, the Boy Scouts of America, engaged in so-called “sexual orientation” discrimination when it refused a request by an open practitioner of homosexual behavior to become a scout leader.2 The United States Supreme Court overruled both of those decisions,3 vindicating the First Amendment rights of the St. Patrick’s Day Parade organizers and the Boy Scouts. But those cases nevertheless demonstrate the constitutional infringements that will likely occur if the proposed ordinance is enacted, not to mention the needless expenditure of taxpayer funds spent litigating cases to restore constitutional rights.
Of the many constitutional protections contained in First Amendment, the free exercise of religion is perhaps the most revered of all. Many religious individuals adhere to certain moral precepts regarding sexual behavior. Accordingly, religiously motivated business owners and institutions are constitutionally entitled to refrain from hiring particular individuals to do certain tasks, and to refrain from offering their services under particular circumstances. Yet, although these individuals and institutions are constitutionally entitled to conduct themselves in accordance with their religious convictions, their actions might be characterized as “sexual orientation” discrimination under this proposed ordinance, and charges might be brought against them.
This constitutional dilemma currently exists in the State of New Mexico, where “sexual orientation” is a protected category in that State’s Human Rights Act.4 A New Mexico photography company refused to photograph a same-sex “wedding” ceremony because the business owners would be violating their religious principles by using their artistic talents to endorse the message that marriage can exist between two individuals of the same sex.5 The business owners were not motivated by “sexual orientation” discrimination, but rather by their constitutionally-protected religious convictions. Nevertheless, a complainant filed discrimination charges against them, alleging that they discriminated on the basis of “sexual orientation.”6 The New Mexico Human Rights Commission found that the company engaged in unlawful discrimination and ordered its owners to pay more than $6,000 in legal fees. This real-world example tangibly represents the direct clash that arises between “sexual orientation” nondiscrimination laws and business owners’ religious convictions. Though the proposed ordinance attempts to create some narrow “religious exemptions,” they clearly do not protect religiously principled business owners like the New Mexico photographer. Such disregard for the rights of these business owners sends the unconstitutional message that they must set aside their deeply held beliefs before entering the marketplace. And that message could only discourage religious people from opening or maintaining their businesses, the last thing Manhattan needs during a time of international economic difficulty.
In addition to infringing upon the religious freedom of business owners, the proposed ordinance will also infringe upon the rights of churches and other religious organizations in Manhattan. For instance, Art. III §10-18(7) would require churches that allow their sanctuaries to be rented for community purposes, like weddings, to rent their facilities for same-sex “commitment ceremonies” and the like. In fact, such churches would even be forced to rent their facilities to other religious or anti-religious groups. While Art. III § 10-18(13)(A) creates an exception for religious groups, it is so unreasonably narrow that it is entirely useless: the exception only applies to religious groups that do not restrict their membership “on account of…religion.”
The “public accommodations” exception for religious liberty in the proposed ordinance is similarly incoherent. There, the definition of “public accommodation” specifically states that it does not include “a religious…organization.” Art. I §10-2(20). Yet the section governing public accommodations includes an exemption for “religious organizations” that mirrors the unreasonably narrow one discussed above. Art. III §10-17(5). Obviously, the presence of the first obviates the need for the second, but both are present. And if the second is in fact what Manhattan will look to in determining whether a law has been violated, First Amendment rights would be violated. For instance, a church that runs an evangelistic homeless shelter or a food ministry to the hungry would not receive the protections since its services aren’t being provided solely to persons sharing its religion. Yet the constitution compels that such a ministry would be protected in conducting its ministry.
In Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, 2010 WL 1913379 (D.Idaho May12, 2010), the court dismissed a Fair Housing Act (“FHA”) religious and sex discrimination complaint filed by a homeless man against a religious Rescue Mission. The court rejected the complainant’s argument that it was an FHA violation for the Rescue Mission to teach, preach, and proselytize to individuals who sought its services. Nor was it a violation to require those individuals to participate in its religious programs to receive certain benefits, like a free meal or free housing. The court recognized that imposing the FHA in those ways would violate the First Amendment by requiring “a religious organization to remove religion from its religious programs.” Id. at *15. The Rescue Mission’s “religious interests” were “so strong that no compelling governmental interest justifies intrusion into the ecclesiastical sphere.” Id. at *16.
In short, enacting the proposed ordinance will communicate to the citizens of Manhattan that the political agenda of a few is more important than the time-honored and cherished First Amendment principles upon which our country was founded.
The Proposed Ordinance Creates Serious Legal Concerns For Business Owners
The broad reach of this nondiscrimination ordinance outlaws innocent conduct by Manhattan business owners, and subjects them to significant liability.
The proposed ordinance prohibits a public accommodation from denying “directly or indirectly…any person the full enjoyment of [its] services, facilities, privileges, [and] advantages.” This concept of “indirectly” denying the “full enjoyment” of goods or services endlessly extends liability for the owners of public accommodations in Manhattan.
For example, suppose a religious employee of a public accommodation wores a shirt proclaiming Biblical teachings on homosexual behavior; suppose further that, based on his “sexual orientation,” a customer was offended by that employee’s shirt (which, of course, she had a First Amendment right to wear) and thus was “indirectly” denied the full enjoyment of the goods and services of that establishment. Under the liberal construction of the proposed ordinance required by Art. I § 10-3(a), this scenario presents a colorable claim for “discrimination.” Of course, it is irrelevant that the employee did not intend to deny the customer from the full enjoyment of the establishment because this proposed ordinance does not include a traditional intent requirement.
In addition, these unsuspecting, good-intentioned employers and business owners may be subject to liability without any “discriminated individual” ever filing a charge against them. The proposed ordinance can be enforced solely because the Director of the Human Relations Commission has reason to believe a person is engaging in an unfair discriminatory practice. Thus, a great amount of discretion is vested in the Commission, and it has sufficient authority to impose significant liability on Manhattan organizations.
More unsettling still is the oppressive penalty structure created by the proposed ordinance. Violators are subject to paying actual damages, mental pain and suffering damages, punitive damages, back-pay, retroactive employment benefits, and fines of up to $50,000 per incident.
In light these legal concerns and the increased liability faced by Manhattan organizations, it is curious for proponents of the change to argue that the enactment of this proposed ordinance will attract businesses to Manhattan. To the contrary, in fact, the proposed ordinance subjects prospective businesses to increased and unmanageable liability, which will drive them away from Manhattan.
Protecting “Sexual Orientation” And “Gender Identity” Is Unnecessary
The proposed ordinance’s protection of “sexual orientation” and “gender identity” is unnecessary. Governmental entities generally enact laws that are necessary to remedy problems, but nothing in the proposed ordinance demonstrates the existence of any problem needing a solution, which is further evidence that this ordinance’s sole purpose is to respond to a political agenda. The proposed ordinance is bereft of any evidence demonstrating that “sexual orientation” or “gender identity” discrimination is a problem in Manhattan. As was demonstrated above, grave legal side-effects are inherent in the proposed ordinance, and consequently, it is unwise to adopt such dangerous legislation when a problem does not even exist.
Creating a Protected Class Status Based On “Sexual Orientation” Presents Additional Concerns
“Sexual orientation” protection is unlike traditional protected categories in nondiscrimination statutes. Traditional protected categories—such as race, nationality, and sex—are innate, immutable characteristics, which cannot be altered or changed in an instant. In contrast, “sexual orientation” is an ever-fluid concept based on one’s behavioral preference (i.e., the category of people with whom one wants to engage in sexual activity or intimate relations). Defining legal protections based on individual behaviors—something that is within an individual’s control—radically departs from traditional nondiscrimination law and creates a system subject to manipulation.
Nondiscrimination laws traditionally prohibit differential treatment based on characteristics that cannot be changed or altered. Creating a protected class based on “sexual orientation” rests on the unspoken assumption that every person is born with a particular “sexual orientation.” But the weight of scientific evidence does not support, and in fact belies, that assumption. A myriad of publications, including the Journal of Sex Research, Developmental Psychology, and Journal of Clinical Psychology, have published studies concluding that homosexual behavior does not result from an immutable biological trait, but from behavioral or psychological phases.7 Thus, the ideological foundation for the proposed ordinance is not only unfounded, it is wholly contradicted by the wealth of available evidence. Homosexual behavior is just that—a behavioral trait, not a biological one; a choice, not an immutable characteristic.
In addition, the breadth of potential liability created by the “sexual orientation” provision is disconcerting. By defining “sexual orientation” to include “homosexuality, heterosexuality, and bisexuality,” the proposed ordinance makes most everyone a potential plaintiff against Manhattan employers, realtors, and owners of public accommodations. To make matters worse, not only does it protect everyone on the basis of their sexual conduct, it purports to protect everyone on the basis of that which is perceived to be their sexual inclination. In other words, everyone qualifies as a potential victim based solely on the manner in which another person perceives them.
Given that “sexual orientation” is not an immutable or uniform attribute, cannot be easily measured, and cannot be discerned by physical characteristics, organizations that are subject to the proposed ordinance will have absolutely no method for objectively assessing an individual’s “sexual orientation.” As a result, this proposed ordinance will expose businesses and others to unfounded charges of discrimination. Since everyone possesses some sort of “sexual orientation,” as that term is defined by the ordinance, nothing will prevent Manhattan citizens from alleging “sexual orientation” discrimination claims in order to gain an unfair advantage, or otherwise abuse their relationship with businesses and others.
Not only would the proposed ordinance create fertile ground for a vast array of unfounded discrimination allegations, it would severely disadvantage employers and others trying to defend against such claims. One’s “sexual orientation,” as that term is defined in the proposed ordinance, is a subjective and changeable notion. Given the absence of scientific proof distinguishing “homosexuals” from “heterosexuals,” no organization or individual could reasonably refute or defend any allegation of discrimination or unfair treatment. Moreover, because the proposed ordinance protects individuals on the basis of their perceived “sexual orientation,” the defending entity will be placed in the nearly impossible position of proving what its employees did and did not perceive regarding another’s sexual behavior. Thus, enactment of this proposed ordinance will increase litigation and legal costs for Manhattan businesses by creating more lawsuits and, more importantly, by creating lawsuits that are nearly impossible to defend.
Creating a Protected Class Status Based On “Gender Identity” Presents Additional Concerns
The proposed ordinance fails to even define “gender identity,” which is perhaps understandable since doing so has often proved even more amorphous than “sexual orientation.”
A person’s sex is determined by biology. But “gender identity” ordinances seek to change that fact by creating a new legal construct—one which codifies the idea that a person can arbitrarily change his or her “gender,” and grants legal protection for those who choose to do so. If the City chooses to enact such an ordinance, it will essentially be adopting an ill-motivated, ineffective political solution to a serious, often ignored, psychiatric disorder.
The “gender identity” concept seeks to create heightened legal protection for persons commonly known as “transgender.” A “transgender” person is one who subjectively identifies as being a member of the opposite sex from that which he or she was born.8 Both supporters and opponents of “gender identity” laws recognize that those individuals who struggle to embrace their biological sex are suffering from a psychiatric disorder known as Gender Identity Disorder (“GID”).9 GID is an established mental illness recognized by the American Psychiatric Association in its Diagnostic and Statistical Manual of Mental Disorders.10 Persons suffering with GID are described as individuals who are severely uncomfortable with, and often desire to change, their biological sex.11
Those who support “gender identity” laws seek to deny the true psychiatric concerns associated with GID and, instead, embrace that condition as normal. In contrast, the opponents of “gender identity” laws emphasize that individuals suffering from GID need psychiatric counseling,12 and not legal protection that normalizes their mentally impaired lifestyle choices.
It is absurd to adopt legal protection to insulate the harmful side effects of a recognized psychiatric problem. The people of Manhattan need to show true compassion and concern for persons suffering from GID by addressing the source of their illness, instead of legally protecting their destructive behavior. We, as a society, have never enacted similar legislation for any other recognized mental illness; there is good reason for that. Imagine, for example, that Manhattan enacted a nondiscrimination law protecting individuals who live with multiple distinct identities or personalities. The community would be stunned at such a misplaced effort to help those suffering with Dissociative Identity Disorder, which, like GID, is a recognized psychiatric disorder. The situation is no different here. If society begins ignoring the needs of those afflicted with mental illnesses—denying them treatment, care, medication, and counseling, in favor political protection—the consequences will be devastating.
Moreover, enacting a “gender identity” ordinance will create many legal and administrative problems for the City government and private businesses. Under such legislation, the City government and private businesses will no longer be able to limit males to the men’s restroom and females to the women’s restroom. If a man claims that he “self-identifies” as a woman, the government or business owner cannot deny him access to the women’s restroom. To do so would amount to “gender identity” discrimination. Following this logic, the Manhattan government and private businesses will no longer be able to segregate men and woman in any setting, or for any purpose, because to do so would violate the law. From a law enforcement standpoint, police officers would not be able to discern whether a man who is in a public women’s restroom is a sexual predator or one who sincerely believes that they are a woman. And if police officers tried to do so, they would subject themselves to liability under the proposed ordinance. Thus, the government and local businesses would be forced to defer to the professed gender of each individual, which can change at any time, without regard to biological reality.
The relatively few “gender identity” laws have not existed long enough to allow a thorough analysis of how they will be applied. We already know, however, that these laws are problematic. There have already been lawsuits filed by persons claiming a right to use restrooms reserved for members of the opposite sex. In fact, eight years ago the Minnesota Court of Appeals ruled that a man must be permitted to use the women’s restroom.13 Fortunately, the Minnesota Supreme Court reversed the decision,14 but the Court of Appeals opinion shows how other courts might interpret these kinds of nondiscrimination laws.
The potential liability created by the “gender identity” provision is unsettling. “Gender identity” laws create legal protection based on subjective feelings and perceptions. One’s “gender identity” is changeable and cannot be easily measured; thus entities that are subject to the proposed ordinance will not have a definitive method for objectively assessing an individual’s “gender identity.” It is most unfair, as a matter of legal due process, to expose entities to lawsuits based on matters that they cannot objectively observe. Moreover, because the concept of “gender identity” turns on a person’s subjective, internal perceptions, the defending entity will be placed in the nearly impossible position of proving what its employees did and did not perceive regarding another’s “gender identity.” Thus, the enactment of a “gender identity” ordinance, like a “sexual orientation” ordinance, will increase litigation and legal costs for Manhattan businesses by creating lawsuits that are exceedingly difficult to defend.
The Manhattan government and private businesses also face an increased likelihood of lawsuit from innocent third parties who would be negatively impacted by a “gender identity” ordinance. Each Manhattan citizen possesses privacy rights, as well as the right to enforce his or her entitlement to privacy.15 A right-to-privacy claim clearly applies to individuals in their use of restroom facilities, and protects them from having their bodies exposed to members of the opposite sex.16 Accordingly, the government and private businesses will be subject to lawsuits from individuals whose privacy rights are violated through the application of the “gender identity” ordinance. Moreover, as a matter of policy, it would be disheartening if Manhattan exalts the desires of a small political subset above the legal rights and safety of its other citizens.
For the foregoing reasons, the City Commission should not enact the proposed ordinance.
______________________________________________________________________________
1 Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston, 636 N.E.2d 1293 (Mass. 1994).
2 Dale v. Boy Scouts of Am., 734 A.2d 1196 (N.J. 1999).
3 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
4 N.M. STAT. § 28-1-7(F).
5 http://www.lifesitenews.com/ldn/2008/jan/08013004.html
6 http://www.lifesitenews.com/ldn/2008/jan/08013004.html
7 Richard C. Friedman and Jennifer I. Downey, SEXUAL ORIENTATION AND PSYCHOANALYSIS: SEXUAL SCIENCE AND CLINICAL PRACTICE 39 (2002); Letitia Anne Peplau & Linda D. Garnets, A New Paradigm for Understanding Women’s Sexuality and Sexual Orientation, 56 JOURNAL OF SOCIAL ISSUES 329, 332 (2000); Rosemary C. Veniegas & Terri D. Conley, Biological Research on Women’s Sexual Orientations: Evaluating the Scientific Evidence, 56 JOURNAL OF SOCIAL ISSUES 267, 277 (2000); J. Michael Bailey et al., Genetic and Environmental Influences on Sexual Orientation and its Correlates in an Australian Twin Sample, JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 78(3): 524-536, 533; Scott L. Hershberger, Biological Factors in the Development of Sexual Orientation, LESBIAN, GAY, AND BISEXUAL IDENTITIES AND YOUTH: PSYCHOLOGICAL PERSPECTIVES 27-51, 40 (Anthony R. D’Augelli & Charlotte J. Pattersons, eds.) (New York: Oxford University Press); J.M. Bailey, et al., Heritable Factors Influence Sexual Orientation in Women, 50 ARCHIVES OF GENERAL PSYCHIATRY 217 (1993); J.M. Bailey & R.C. Pillard, A Genetic Study of Male Sexual Orientation, 48 ARCHIVES OF GENERAL PSYCHIATRY 1089 (1991); Janet R. Jakobsen & Ann Pelligrini, LOVE THE SIN: SEXUAL REGULATION AND THE LIMITS OF RELIGIOUS TOLERANCE 96 (Boston: Beacon Press 2004); Joseph P. Stokes, et al, Predictors of Movement Toward Homosexuality: A Longitudinal Study of Bisexual Men, 43 JOURNAL OF SEX RESEARCH 304, 305 (1997); Roy F. Baumeister, Gender Differences in Erotic Plasticity: The Female Sex Drive as Socially Flexible and Responsive, 126 PSYCHOLOGICAL BULLETIN 347 (2000); Letitia Anne Peplau & Linda D. Garnets, A New Paradigm for Understanding Women’s Sexuality and Sexual Orientation, 56 JOURNAL OF SOCIAL ISSUES 329 (2000); Lisa M. Diamond & Ritch C. Savin-Williams, Explaining Diversity in the Development of Same-Sex Sexuality Among Young Women, 56 JOURNAL OF SOCIAL ISSUES 297 (2000); Karen L. Bridges & James M. Croteau, Once-Married Lesbians: Facilitating Changing Life Patterns, 73 JOURNAL OF COUNSELING AND DEVELOPMENT 134, 135 (Nov./Dec. 1994) (describing C. Charbonneau and P.S. Lander, Redefining Sexuality: Women Becoming Lesbian in Mid-Life, LESBIANS AT MID-LIFE 35 (B. Sang, et al. editors, 1991)); Lisa M. Diamond, Development of Sexual Orientation Among Adolescent and Young Adult Women, 34 DEVELOPMENT PSYCHOLOGY 1085 (1998); Susan Rosenbluth, Is Sexual Orientation a Matter of Choice?, 21 PSYCHOLOGY OF WOMEN QUARTERLY 595, 605-607 (1997); Sari H. Dworkin, Treating the Bisexual Client, 57 JOURNAL OF CLINICAL PSYCHOLOGY 671 (2001); Lisa M. Diamond, Was It a Phase? Young Women’s Relinquishment of Lesbian/Bisexual Identities Over a 5-Year Period, 84 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 352 (2003); Robert L. Spitzer, Can Some Gay Men and Lesbians Change Their Sexual Orientation? 200 Participants Reporting a Change from Homosexual to Heterosexual Orientation, 32 ARCHIVES OF SEXUAL BEHAVIOR 403 (2003); Warren Throckmorton, Initial Empirical and Clinical Findings Concerning the Change Process for Ex-Gays, 33 PROFESSIONAL PSYCHOLOGY: RESEARCH AND PRACTICE 242 (2002).
8 http://en.wikipedia.org/wiki/Transgender
9 http://www.transgenderlaw.org/resources/translaw.htm;
10 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV (1994).
11 See http://en.wikipedia.org/wiki/Gender_identity_disorder (“[A] condition in which a person has been born one gender, usually on the basis of their sex at birth . . . , but identifies as belonging to another gender, and feels significant discomfort or the inability to deal with this condition.”).
12 http://www.nlm.nih.gov/medlineplus/ency/article/001527.htm (recognizing that the “recommended” treatment for those suffering from GID is “individual or couples therapy”); http://www.athealth.com/ consumer/disorders/genderiden.html (noting that “[p]sychological therapy can alter the course of gender identity disorder”).
13 Goins v. West Group, 619 N.W.2d 424, 429 (Minn. App. 2000).
14 Goins v. West Group, 635 N.W. 2d 717, 723 (Minn. 2001).
15 Restatement (Second) of Torts § 652(B).
16 Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981).
