Prop 5 creates unnecessary patchwork of special rights

commentApril 1, 2012 

The Prop 5 imbroglio in Anchorage would be amusing if not so bitterly sad. Gays, lesbians and transgender people, despite the incessant yammering and misleading ads to the contrary, already have rights -- identical to yours; identical to mine. We are -- Surprise! -- all equal.

It is not just me saying that. It's the Declaration of Independence. The 14th Amendment. The Gettysburg address. The Alaska Constitution. The Anchorage Charter. There is no "except for" and certainly no "especially" in the documents when it comes to equality.

So why are we fighting? Supporters of Prop 5, fat with American Civil Liberty Union and Outside cash, are champing at the bit to cobble onto Anchorage's lengthy anti-discrimination ordinance yet another layer of hard-to-enforce special protection.

Existing law bars discrimination in housing, employment and elsewhere based on race, color, sex, religion, national origin, marital status, age or disability. Prop 5 would add "sexual orientation or transgender identity."

Armed with a self-serving survey, Prop 5 supporters claim discrimination is rampant in Anchorage. They say gays, lesbians and transgender people have no special status before the Anchorage Equal Rights Commission because the law does not bar discrimination targeting them.

Opponents, including a large church or two that should know better, launched a mean-spirited, sleazy, cartoon-based attack that reduced Prop 5 backers to caricatures. The ballot question's opponents claim it attacks religious freedom. In fact, it attacks only individual religious freedom. There are exemptions already in the city's anti-discrimination ordinance for churches and a laundry list of religious businesses and institutions. Each can use preferential treatment in employment and several other areas "to promote the religious principles for which it is established or maintained." The individual? Out of luck.

Despite the exemption for institutions' religious principles, even they must toe the line in discrimination based on race, color, sex, religion, national origin, marital status, age, or physical or mental disability.

Does anybody but me wonder why, if we eschew discrimination, we give churches and religious organizations and businesses a pass? Why do other businessmen or landlords -- who could be devout -- not get the same exemption? Why do we tell churches, et al, they can pick and choose to discriminate against those who offend their principles -- but nobody else?

As this debate started, I chatted with a very earnest young lawyer backing Prop 5. He made good points. My view: If we ignore constitutional principles, if we keep troweling on special protections for this group or that, the Constitution becomes even more meaningless. We could find ourselves with more idiocy afoot in the land -- "hate crime" laws, for instance.

He wondered whether adopting Prop 5 now would not be prudent until we could depend on the Constitution's equal application.

I could see his point but such efforts undercut the Constitution and are ill-conceived attempts to use government to imbue some with special rights and protections at the very real expense of others. They are societal Band-Aids, further dividing an already Balkanized nation and setting up largely unintended consequences.

In New Mexico, for example, a woman a few years ago contacted a small business to photograph her upcoming same-sex commitment ceremony. The company declined on religious grounds. The would-be customer filed a "sexual discrimination" complaint with the New Mexico Human Rights Commission. The company was found guilty and fined $6,600 for legal fees. So much for First Amendment protections.

Instead of granting additional rights to a few via a poorly crafted law, why not finally and fully embrace this nation's legal framework and demand government adhere to constitutional principles and treat each of us exactly the same.

The Constitution, after all, does not guarantee we will not be discriminated against any more than it demands that we will. But constitutional laws that treat us fairly and equally would abrogate the need for patchworks such as Prop 5, which, I suppose, is a smokescreen anyway. It is not just about gay discrimination in Anchorage. It is about the long-haul, incremental fight for gay marriage and acceptance. Count me among those who could not care less. Everybody should be happy.

What is difficult to understand is why there are those who, as in George Orwell's "Animal Farm," want to be more equal than the rest of us, and why some, whose civil rights are absolutely in jeopardy on Tuesday, would go along.

Amusing, if not so bitterly sad.


Paul Jenkins is editor of the AnchorageDailyPlanet.com.

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