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Thought experiment on constitutionality of employment non-discrimination laws

Posted by B. Daniel Blatt at 7:36 pm - April 25, 2011.
Filed under: Constitutional Issues,Freedom,Legal Issues

In 1982, Wisconsin was the first state to enact a non-discrimination law that prevented companies from firing individuals based on their sexual orientation.

Now, imagine if you will, a socially conservative business owner in rural Wisconsin who learns that a hard-working and  very reliable employee is gay.  In a misguided (but, from his point of view, well-meaning) action, this employer offers to enroll his worker in a conversion therapy program.  He refuses.   Their confrontation creates tension between the two, resulting in a decline in the employee’s work performance.  The employer fires him.

With the help of the ACLU and Fair Wisconsin, the employee takes the employer to court, contending the employer discriminated against the employee because he was gay (in violation of the 1982 statute).  The Alliance Defense Fund hears of the case and offers not just to defend the employer — but also to challenge the constitutionality of the Badger State’s 1982 law.

The Fund turns to the First, Ninth and Fourteenth Amendments to make a case for the employer’s rights of free association as well as his liberty and property interests.  Seeing this case as an opportunity to strike down not just the 1982 Wisconsin law, but other state mandates on employers’ rights, a number of libertarian groups join the suit.

Accepting these libertarian arguments, Governor Scott Walker and state Attorney General J. B. Van Hollen elect not to defend the law.

Now, while I contend that the libertarian argument may well have constitutional merit, I believe Walker and Van Hollen would be wrong not to defend the state’s law.

Before I write a post on a related matter, let me ask you, our readers to guess that related matter and why I offer this hypothetical.

NB: Tweaked the piece since I first posted it in order to improve the flow and make my point clearer.

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42 Comments

  1. “his point of view, well-meaning”

    ——–

    Good intentions are always well-meaning…… But our rights cannot be an extension of the interest group, or groups, we belong to.

    A Republic only works when every individual human has exactly the same rights. A Republic on works when a majority cannot vote-away the rights of a (self-described) minority. The rule of law is a system of means, not a system of ends.

    The only legitimate subdivisions of Americans are; citizen, city, county, and state. No other groups exist…..none based on arbitrary racial perceptions, and none based on public union employment, are real.

    ‘Separate, but Equal’ has been tried already in this country. It didn’t work back then, and it wont work today. It is a flawed strategy for ‘Progress’.
    .

    Comment by gastorgrab — April 25, 2011 @ 8:01 pm - April 25, 2011

  2. Since Governors all over are cherry picking what they are willing to defend – I’m siding with Walker on this one. When Schwarteneger wouldn’t defend Prop 8 everyone was Ok with that. Well here’s the flip side, live with it.

    Comment by Leah — April 25, 2011 @ 8:44 pm - April 25, 2011

  3. Why would I possibly want to work for someone who wants to fire me because I’m gay? If he doesn’t want the best employees possible for his wage dollar, is not interested in maximizing his productivity, etc, what does that say for his business model?!?

    Flip side, if he won’t fire me for poor performance explicitly because I’m a member of a ‘protected class’, what’s the line about the ‘soft bigotry of low expectations’?

    Let my performance stand on its merits as an individual employee – not as a member of a protected class!

    Comment by Jax Dancer — April 25, 2011 @ 9:02 pm - April 25, 2011

  4. I think they need to defend the law. To be honest, even if they disagree with the law. If there’s a constitutional argument, they need to take it even if they disagree with it.

    Comment by The_Livewire — April 25, 2011 @ 9:11 pm - April 25, 2011

  5. I believe Walker and Van Hollen would be wrong not to defend the state’s law.

    But if they truly believe the law is wrong – i.e., unconstitutional – how good is their defense going to be? Would you really want them defending the law? How could their performance be fair to the law, and its advocates? Granted that elected officials must always follow the law themselves, is it not true that even they have a right/duty to be honest when they think law X is stupid? Is there any means by which the officials could step aside (in this one issue) and let the law’s advocates give it a better defense?

    Note these are all questions… not points, not assertions…

    Comment by ILoveCapitalism — April 25, 2011 @ 9:12 pm - April 25, 2011

  6. I agree with Leah on this one.

    Comment by Seane-Anna — April 25, 2011 @ 9:33 pm - April 25, 2011

  7. Respectfully, ladies, I must disagree.

    That Arnie didn’t do his job and defend Prop 8, and that Holder’s (in)justice department didn’t do their jobs and defend DOMA, is exactly why Walker needs to defend the law.

    Look at Paul Clement’s statement:
    I take this step not because of strongly held views about the statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.
    [Emphasis mine]

    In my job, I’ve had to give abortion benefits. While I oppose abortion, in my professional capacity I had to edcuate member to the benefits.

    Shorter Livewire: He needs to defend the law, because we’re better than the liberals.

    Comment by The_Livewire — April 26, 2011 @ 8:01 am - April 26, 2011

  8. #7 Agreed. Only liberals pick and choose which laws they like. A law should be enforced. If you want to try and change or remove it, fine, but enforce the laws on the books.

    Comment by TGC — April 26, 2011 @ 9:40 am - April 26, 2011

  9. The silence of the left in these comments speaks volumes.

    Comment by V the K — April 26, 2011 @ 9:52 am - April 26, 2011

  10. your thought experiment is muddled, he was fired for job performance, not for being gay, therefore the statue doesn’t apply.

    Obama not defending DOMA is different than not enforcing DOMA, the Obama administration still enforces both DOMA and DADT is still being defended in court. Saying that the DOMA position is unconditional and unlikely to win and faced with a court ruling saying the same thing it just falls back to Congress to deal with.

    Comment by Tim — April 26, 2011 @ 10:29 am - April 26, 2011

  11. [...] into uncharted waters, where the legend on the map reads, “Here Be Dragons.”UPDATE: Dan at Gay Patriot engages in a thought-experiment about anti-discrimination laws.It is important to understand that the heart of the question raised by the King & Spalding [...]

    Pingback by ‘When You Give in to Thuggery’ : The Other McCain — April 26, 2011 @ 11:00 am - April 26, 2011

  12. Tim has the logic that only a five year old can follow. Thus explaining his dating preferences.

    In applying the law, and not defending it, the President is trying to split the baby (which seems to be his typical pattern). Either he’s violating his oath to defend the constitution, or he’s violating his oath to execute the constitution. He’s trying to appeal noble and wise by splitting the difference.

    Comment by The_Livewire — April 26, 2011 @ 11:28 am - April 26, 2011

  13. But, Tim, you’re missing a detail. His job performance would not have declined had the employer not raised the issue. The ACLU et al. would seize on that in their suit.

    Comment by B. Daniel Blatt — April 26, 2011 @ 11:33 am - April 26, 2011

  14. Furthermore, this isn’t a thought experiment. We already have here in San Francisco an individual who is, with the support and endorsement of the gay and lesbian community, the Obama Party, and the unions, trying to have a business stripped of its Federal contract.

    Their crime? They fired him, a gay person, because he was sexually harassing his coworkers.

    The Obama Party, the unions, and the gay and lesbian community have stated that this is homophobic, that the company in question needs to be stripped of its Federal contract and punished, that it is perfectly normal and appropriate for gays and lesbians to sexually harass their coworkers, and that sexually harassing your coworkers is not grounds for firing on the basis of job performance.

    There’s no theoretical about this, Timmeh. This is what the Obama Party supports and endorses. This is what Pelosi, Reid, and Obama support. This is what NGLTF, Lambda Legal, HRC, and the other leaders of the gay and lesbian community support. They are demonstrating flat-out with this case that they intend to use the power of the government and “nondiscrimination” laws to punish and destroy any business that fires or refuses to hire a gay and lesbian person for any reason.

    You can either repudiate your fellow gays and lesbians on this one, or you can start screaming about unrelated topics. Since you don’t have the balls to call out even child-molesting gays, my money’s on you choosing the latter option.

    Comment by North Dallas Thirty — April 26, 2011 @ 12:17 pm - April 26, 2011

  15. @B. Daniel Blatt it would be very hard to prove, you would have to find evidence, or people who are willing to testify that the boss told them this directly. Labor courts at least here in Oklahoma almost always side with the employer though sometimes they will give you unemployment if you apply for it a few times.
    Again not enforcing the law and not defending the law are two very separate things. A president or Governor does have the responsibility to enforce their law but they are not expected to be blind swords. There are many tools for circumventing and this is by far the classiest because the executive office holder simply bows to the ruling of the court, which if you remember is an equal member of the government. So deferring to the ruling of the court is hardly some crazy action. I don’t understand this sudden hatred of anything the courts work on?? If they felt personally moved they can pursue appeals but why should they be forced to?

    Comment by Tim — April 26, 2011 @ 2:57 pm - April 26, 2011

  16. @ND30 Maybe you should move to texas if being gay in san Fransisco is such a burden. I bet you could earn some extra money hosting Exodus parties.

    Comment by Tim — April 26, 2011 @ 2:59 pm - April 26, 2011

  17. @ND30 Maybe you should move to texas if being gay in san Fransisco is such a burden. I bet you could earn some extra money hosting Exodus parties.

    True — because in Texas, they treat gays equally, which means the laws against sexual harassment in the workplace are enforced.

    People were opining about my tactics and wondering why I used them last week, Timmeh, and here’s another prime example: gays like yourself are so insanely and reflexively defensive that you will end up defending and endorsing workplace sexual harassment rather than admit that your fellow gays and lesbians were wrong.

    This isn’t a first. You defend and support your fellow gays and lesbians who insist on raping and molesting children, even family members, even though you tried to blabber that you knew how hurtful raping and molesting children was.

    You are so desperate to spin for the gay and lesbian community that you support workplace sexual harassment and child molestation.

    People KNOW this, Timmeh. They see you practice it every day. Did you ever think your endorsement and support of raping and molesting children you adopt or foster would provide grounds for laws banning you from contact with children? Did you ever think your endorsement of sexual harassment in the workplace would lead to your being removed from it?

    No. You didn’t. Why? Because you have been taught from day one that you’re not responsible for your behavior.

    No wonder you know about unemployment in Oklahoma. No sane employer would hire in any capacity someone like yourself who endorses and supports workplace sexual harassment.

    Comment by North Dallas Thirty — April 26, 2011 @ 4:25 pm - April 26, 2011

  18. A president or Governor does have the responsibility to enforce their law but they are not expected to be blind swords. There are many tools for circumventing and this is by far the classiest because the executive office holder simply bows to the ruling of the court, which if you remember is an equal member of the government.

    Then, sincde the Supreme Court — incidentally, the same one with the same members that decided Loving v. Virginia — already established in Baker v. Nelson that there is no constitutional right whatsoever to gay-sex marriage and that it isn’t even a Federal question, any attempt to appeal DOMA is disrespecting the court, and any governmental official who tries to do so is violating the Constitutional separation of powers and should be removed.

    Especially since DOMA itself has already been repeatedly upheld by Federal courts.

    Now watch how fast hypocrite Timmeh reverses himself.

    Isn’t that amazing? Hypocrite Timmeh wants the court’s word to be absolute — except when he disagrees with it, in which case he screams and whines and cries that taxpayer dollars be used to appeal it over and over and over and over again until he gets the result he wants.

    Comment by North Dallas Thirty — April 26, 2011 @ 4:33 pm - April 26, 2011

  19. And don’t forget, the California Supreme Court found Proposition 8 to be completely constitutional.

    Thus, any appeals of it are illegal and should be blocked, according to Timmeh logic.

    Comment by North Dallas Thirty — April 26, 2011 @ 4:34 pm - April 26, 2011

  20. @nd30 *shhhhh* adults are talking.

    Comment by Tim — April 26, 2011 @ 5:06 pm - April 26, 2011

  21. I understand, given your preference for children, that adults talking might be scary to you, Tim.

    But ND30 has you dead to rights. Adults are talking. You might want to shut up and listne.

    Comment by The_Livewire — April 26, 2011 @ 5:49 pm - April 26, 2011

  22. @The_Livewire I don’t really listen to people who believe that gays are inherently evil. I don’t see why you think that’s an adult proposition or even that his daily slander bares even a hint of truth.

    If I said I saw you raping children and forcing them to smoke porn you wouldn’t care because you know it’s not true, The same goes with ND30′s rants and stereotypical slander.

    Comment by Tim — April 26, 2011 @ 6:08 pm - April 26, 2011

  23. ps don’t smoke porn

    Comment by Tim — April 26, 2011 @ 6:08 pm - April 26, 2011

  24. Fair points, Tim, but Wisconsin is not Oklahoma! :-)

    And perhaps, there is evidence, say a Memo from the employer to the employee about ex-gay ministries.

    Comment by B. Daniel Blatt — April 26, 2011 @ 7:31 pm - April 26, 2011

  25. @Dan true, but since it is a thought game, i had to draw from personal experience. Perhaps there is a memo but depending on the lawyer and if the jury saw it you could always argue context. Still I think you are looking for a way of saying that a person must express positive emotion for a law even if he/she doesn’t agree with it and I just don’t think that’s reasonable or even desirable. Becoming a public servant doesn’t mean sacrificing individuality, it means that you obey and follow the rules which have been established. However if there were no way of changing the rules society would stagnate over time locked in unchanging rules for different times… and blacks would still be drinking at separate fountains.

    Comment by Tim — April 26, 2011 @ 7:39 pm - April 26, 2011

  26. I think Walker should defend the law. If he disagrees with the statute then let him get like-minded legislators to introduce a bill to repeal it and then campaign to get the people’s elected reps. to pass it.

    Non-discrimination laws are a sticky area. On the one hand, I think at-will employment means just that: either side can walk away for any reason.

    On the other hand, though, plenty of employers (especially in today’s labor market) will abuse and mistreat their employees up to the very edge of what’s legal. The law provides some guardrails.

    I’m at the age where age discrimination is an issue (especially in my line of work). If I’m let go because of declining competence or a business slowdown – fine. But if I’m let go simply to be replaced by younger+cheaper then I confess that I will be looking for a lawyer.

    Comment by SoCalRobert — April 26, 2011 @ 7:47 pm - April 26, 2011

  27. @SoCalRobert yeah I agree it’s a funny edge wanting to argue for employer rights while at the same time helping a friend who dealt with an an abusive employer because had had little choice but to work there simply to put food on the table. This is the same friend who was injured on the job and now has irreparable spinal damage. If he had a surgery he would have been given a 250k settlement to help with expenses and adjustment. However because surgery couldn’t do anything for him he received 23k and that didn’t even cover the bills that had accumulated in the 17 months he waited for his case to be resolved.
    There are many recourses for an executive faced with an undesirable duty, I think that’s a good thing most times, though I’ve grown increasingly disdainful of executive sign statements. I’m sure they’ll have to be faced sooner rather than later. If Congress writes a bad law veto it. It’s their job to amend it.

    Comment by Tim — April 26, 2011 @ 7:57 pm - April 26, 2011

  28. [...] expected, some of our savvier readers understood why I posed the thought experiment about a hypothetical business decision in [...]

    Pingback by GayPatriot » The politically correct bullying of King & Spalding — April 26, 2011 @ 8:01 pm - April 26, 2011

  29. @Dan look what I found! http://republicans4freedom.net/ nice background story too over at . at I think i may have a new crush

    Comment by Tim — April 26, 2011 @ 8:01 pm - April 26, 2011

  30. @Dan sorry the background story link is here</a

    Comment by Tim — April 26, 2011 @ 8:03 pm - April 26, 2011

  31. Sorry, Tim, took a brief glance at the site. Not legit. No serious Republican group would rely on Southern Poverty Law Center definition of American Family Ass’n as hate group. I think those at AFA can be kind of loopy, but they’re not a hate group.

    By using standards similar to those SPLC used to call them a hate group, a conservative could call HRC a hate group.

    Comment by B. Daniel Blatt — April 26, 2011 @ 8:05 pm - April 26, 2011

  32. Uhh when has the HRC ever published fraudulent “reports” about straight people?

    Comment by Doom — April 26, 2011 @ 8:31 pm - April 26, 2011

  33. @Dan, lmao yeah that might be so but all those groups clearly qualify or are you defending Bryan Fisher now? See this is where you go odd egg you exclude people based on your own rules for who is or isn’t a republican such an odd little habit. Oh well it’s your blog, it’s been fun chatting today.

    Comment by Tim — April 26, 2011 @ 9:26 pm - April 26, 2011

  34. “Uhh when has the HRC ever published fraudulent “reports” about straight people?”

    Doom,

    Please be quiet, don’t wake ND30 up. His nurse (paid by medicaid, but don’t tell him) reports that the medication is working and he needs his sleep. While he sleeps, Obama–and the entire gay left–are meeting with the planners of the Folsom Street Fair and they would prefer ND30 not interrupt their plans to enslave children.

    Comment by Brendan — April 26, 2011 @ 9:27 pm - April 26, 2011

  35. Tim, huh? Who is Bryan Fisher and how am I defending him? What do you mean excluding people?

    I’m just saying that SPLC is using some pretty broad standards to dub AFA a hate group. Loopy ideas on homosexuality they may have, but hateful they are. That’s why I bring in HRC here. Not because I think they are a hate group, but if you decide dub one group hateful because you disagree with their ideas, then they can use similar standards to call your outfit a hate group.

    Comment by B. Daniel Blatt — April 26, 2011 @ 9:46 pm - April 26, 2011

  36. Well, since Timmeh has succeeded in diverting the topic, let me look at yet another angle. Gary Johnson has said that he thinks the Government should get out of the marriage business (a solution I support, BTW). He also supports legalizing marijuana, and cutting the military. I think he may also be pro-abortion.

    So, will those who have claimed that they support fiscal conservatism but oppose Republicans because of their conservative positions on social issues rally to support his campaign? Or, will they continue to be one-party partisan hacks?

    Comment by V the K — April 26, 2011 @ 10:00 pm - April 26, 2011

  37. @Dan um Bryan fisher is this guy and hateful he is http://bit.ly/f5EONO as the most prominent person on the AFA site I’m assuming you read what he said? Or watched his republican hopeful interviews?
    These are the standards that SPLC used http://bit.ly/gLzpfI “Generally, the SPLC’s listings of these groups is based on their propagation of known falsehoods — claims about LGBT people that have been thoroughly discredited by scientific authorities — and repeated, groundless name-calling. Viewing homosexuality as unbiblical does not qualify organizations for listing as hate groups.”
    While I have issues with some of the practices of the SPLC after reading their perimeters for labeling I agreed with their classification. Knowingly using discredited and false studies to further their arguments is a tactic of a group not concerned with the truth and only concerned with their belief.
    Your immediate discounting of a blogger (who may or may not be real without talking to him means that you are judging solely on an assumed bias. Since your bias is apparently based on a cursory knowledge of the groups that have been labeled ‘hate groups’ I am not overly confident in your sudden view. I have had previous blog crushes destroyed by logical arguments that made me rethink my hypothesis’s but your statement did not rise to that level.

    Comment by Tim — April 26, 2011 @ 10:52 pm - April 26, 2011

  38. @V the K, hmm new mexico, I grew up there. Well his wiki page is impressive but I’d have to read up one him. I could support him on what I’ve read so far but I don’t have a history on him to draw from. Is he running? If he doesn’t back the return of DADT i’d support him based on what i’ve read.

    I was thinking about Romney earlier, I really wish he hadn’t tacked right and had to back step on his centrist positions as governor. That saddened me I think he cost him his appeal to the centrists

    Comment by Tim — April 26, 2011 @ 10:58 pm - April 26, 2011

  39. If I said I saw you raping children and forcing them to smoke porn you wouldn’t care because you know it’s not true, The same goes with ND30′s rants and stereotypical slander.

    Of course, the difference is that you do support having sex with underage children and insist that those who don’t need their “moral compass” adjusted, you do support dressing toddlers as sexual slaves and having them “show off” at a sex fair for the use of naked and masturbating adults, and you do support and endorse the stripping of Federal contracts and the shutting down of businesses who fire gays and lesbians who sexually harass other employees.

    Those are facts, Timmeh. Your continued denial of them is nothing surprising to any of us, but it does explain a lot about why you scream and cry so much about being “oppressed”. Having to cope with reality and your own shortcomings is far beyond you and the vast majority of gays and lesbians; complaining that everyone is out to get you is a far simpler, if more deluded, coping mechanism.

    And by the way, no one misses the irony of you complaining about “stereotypical slander” given your views of peoples’ religious beliefs.

    Comment by North Dallas Thirty — April 26, 2011 @ 11:43 pm - April 26, 2011

  40. Tim, I’ll repeat my point. No serious Republican blogger would rely on SPLC. So, given all the blogs there are to read, that one thing called out to me and caused me to question the guy’s sincere commitment to conservative principles.

    Comment by B. Daniel Blatt — April 27, 2011 @ 12:35 am - April 27, 2011

  41. [...] to King & Spalding’s pusillanimous posturing, the leaders of HRC will consider the hypothetical I offered a few days ago.  They have now provided a standard for social conservatives to put [...]

    Pingback by GayPatriot » HRC Costs Law Firm a Client — and its Reputation — April 29, 2011 @ 5:33 pm - April 29, 2011

  42. the authors retort to your response http://bit.ly/iloPCa

    Comment by Tim — May 1, 2011 @ 2:14 am - May 1, 2011

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