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Friday, Jul. 27, 2001

It's still safe to discriminate against gays in Maryland — for a little while longer, at least. Last week, the Maryland State Board of Elections certified the petition to put Maryland's Anti-Discrimination Act to the voters in 2002. Pending next year's referendum, the law is a dead letter. Don't expect to see "Heterosexuals Only" signs sprouting across the Free State, but then again, you can't call the police if you do.

It remains to be seen whether Maryland voters will follow their Maine counterparts. But when they consider the Act, they should bear in mind that its goals are modest and, for many other groups in society, at this point entirely uncontroversial.

The Maryland Anti-Discrimination Act: A Basic Civil Rights Measure

The Maryland Anti-Discrimination Act is a scoop of vanilla. It prohibits discrimination on the basis of sexual orientation in housing, employment, or public accommodations. Amendments to the law expressly prohibit it from being used to authorize changes in school curriculums, gay marriages, or same-sex partner benefits.

In other words, the law is an anti-discrimination measure in the classic sense of the early days of the Civil Rights Movement. In the 1950s, the fight was over whether blacks could eat at lunch counters, rent apartments, or apply for jobs. Maryland's law aims to accomplish the same ends for gays, with nothing more dramatic than a debate in a state legislature beforehand. In that sense, it represents substantial progress: a civil rights measure without the bloodshed.

The narrow purpose of the law, and the clarifying amendments, render opposition to it especially problematic. Opponents of the Maryland law think that homosexuality is wrong, no question. Their websites (leading the fight is a group called and statements to the press are unequivocal on that point.

But opponents do concede a few points. One of the leaders of the opposition in Maryland, for example, told the Washington Post that he believed that gays "'deserve[] to be left alone, not harassed, protected from physical violence.'" That sounds a lot like saying that homosexuals should be allowed to sit at a bar and drink their beers in peace. And that sounds a lot like what the Anti-Discrimination Act assures.

The Root of the Opposition: Cultural Consequences, not Legal Ones

Some of the specific arguments against the Act are not, as in any political debate, meant to be taken seriously. For example, opponents of the bill have argued that because gays are a singularly "successful" minority — well educated, well heeled, and so on — anti-discrimination laws are superfluous. While the characterization of the gay community is generally accurate, the notion that this motivates anyone's opposition is absurd. No one designs websites, spends money, and gathers signatures — all in the name of combating the merely unnecessary.

Fundamentally, opposition to the law depends upon conflating what the law is and what it is said to represent. The law itself does not authorize any type of affirmative action. But opponents insist it's the thin edge of the wedge. As one of the leaders of the petition drive told the Post, "'What is the law for? It's to force people to accept homosexuality as normal.'"

What Equal Protection Laws Mean

The granddaddy of all non-discrimination laws, the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, prohibits denial of "equal protection of the laws." There is a lot of evidence suggesting that the Fourteenth amendment was intended specifically to authorize affirmative action, Nineteenth Century-style. The Congressional debates over the Amendment were entwined with the debates over the Freedman's Bureaus, and the Bureaus authorized extensive assistance to former slaves — including help with establishing residences and property holdings and reuniting families broken up by slaveholders.

Opponents of both the Amendment and the Bureaus (including President Andrew Johnson, who vetoed the first Freedman's Bureau bill) argued that extending help to blacks without doing the same for whites violated the constitution. Ultimately, despite these arguments, the Amendment was adopted and the Bureaus were established.

In spite of this history, the Fourteenth Amendment has never been found to compel any form of affirmative action. At most, it was viewed as authorizing government action that distinguished between citizens on the basis of race, as long as the action was aimed at remedying present or past discrimination. And today, the equal protection clause operates almost exclusively as a hurdle to be overcome by any remedial legislation. Government-sponsored affirmative action to benefit racial minorities must pass strict scrutiny, the most rigorous level of Constitutional review.

The Maryland Law Will Not Create Special Rights or Benefits

Back to Maryland. Even before the Anti-Discrimination Act was amended, it was unlikely to serve as a basis for special rights or benefits. The debates in the Maryland legislature made plain that even most proponents of the law were not proposing any form of special assistance to gays — unlike the proponents of the Fourteenth Amendment, who were trying, in an effort to ameliorate the pervasive horrors of slavery, to pass numerous laws solely for the benefit of African-Americans.

The amendments to the Act make that crystal clear. The primary concerns for opponents — gay marriage, same-sex partner benefits, curricular changes — are explicitly not authorized by the law. Any such changes will have to wait for a different day and a different law. All that remains are the most traditional protections, those vouchsafed to racial minorities at the beginning rather than the end of the civil rights era.

Again, laws have cultural consequences. And for some legislators who only voted for Maryland's Anti-Discrimination Act because of the limiting amendments, the consequences here may be unintended. But those who condemn homosexuality appear to recognize that in a free society, some rights — like the right to be left alone — must be guaranteed to those with whom we disagree, even on the most fundamental questions.

Across the country, there are battle-fires burning over a variety of civil rights issues involving gays and lesbians. No matter where someone stands on those issues, it should be plain that the right to eat at a restaurant is different from the sort of dramatic change to our laws that, say, permitting gays to marry would involve. Do those who oppose what is today the cutting edge of civil rights laws really need to take time out to argue over whether gays should have to sit in the back of the bus?

Barton Aronson is currently a prosecutor in Washington, D.C. Prior to that, he was in private practice in Washington, D.C. and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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