Let’s argue about gay rights again

After all that practice debating gay rights or equal rights or the rights of the sexually oriented, you’d think we’d be better at it by now. But despite endless argument over 30 years, Maine still seems to have trouble even framing the question. Maybe some outside guidance would help.

In the latest version of the law, the Legislature and an enthusiastic Gov. Baldacci made sexual orientation an unlawful reason to discriminate in the areas of housing, employment, public accommodation, credit and education. You might think that would still leave enough other opportunities for discriminators to work themselves up, but the law is being contested by the Christian Civic League, which will try to gather 50,000 signatures by the end of June to force a public referendum on the issue while simultaneously turning the law into the League Fundraising Act of 2005. It is hoping, it reports, to attract $2 million to make its case.

Perhaps the league will use some of the money to figure out what is being debated. In recent days I’ve heard from a woman who is concerned the law will make homosexuality legal, a man who says it could not outlaw hate and another who opposes it because heterosexuals can be discriminated against too. So, quickly, being a homosexual isn’t illegal now; hate all you want, just don’t act on it; and because the law covers “sexual orientation,” heterosexuals are also protected.

The league is on the wrong side of the debate, but at least its president, Dallas Henry, grabs hold of the real issue when he says, “no other legislation has had the potential to destroy the entire social fabric of our state, and our nation.” Before we can find out why, however, he gets distracted. He says, “In a democracy, the majority opinion must guide government, not the reverse.” He was referring to a referendum five years ago when the anti-rights position won. But now that our designated representatives – legislators – have voted in the majority to support a pro-rights position, the argument doesn’t look so good.

Similarly, the fear factor in the league’s message – that the law will lead to same-sex marriage, a position it hasn’t worried about for two decades previously – got muddied when legislators amended the bill to include a line that says it doesn’t change the state’s limitations on marriage. Muddied but not obliterated; there is a point to be made that a society that refrains from tossing a person out of a restaurant based on that person’s sexual orientation rather than, say, atrocious eating habits, may be more likely to

consider a same-sex marriage bill.

But all this is beside the point. Here is the issue that should decide the question, as rendered by the nation’s helpful Virgil, Supreme Court Justice Antonin Scalia, in a dissent in Lawrence v. Texas. “Many Americans,” he writes, “do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. …”

The “why” is still absent – that wasn’t the purpose of Justice Scalia’s opinion – but this is the substantial argument to retain the option of denying homosexuals the accommodations of food and housing, of work or bank credit: you believe they are immoral and societally destructive. This would include the assumption that the mere knowledge of such a lifestyle causes harm to us all.

Forget about that squishy “hate the sin, not the sinner” business. To conclude that a particular group is unworthy of being served at a restaurant or a bank is to condemn the perceived sinner. Why else would you choose to fight over the day-to-day requirements of living that make no specific reference to sexual orientation? To stand against these protections is to urge homosexuality out of existence, which in practical terms means to drive gays from the state. This has not been a successful strategy so far, but it is interesting that the Christian Civic League also opposes expanding Maine’s creative economy (calling it, quaintly, “hippie communes”), which is clear about encouraging tolerance and the presence of which surely would make Maine less unattractive to gays.

The argument is about moral harm. But the evidence of harm is missing and has been missing from states that have had similar laws for many years. Protections of the sort just passed here already cover about half the country’s population, including the rest of New England. Does New Hampshire suffer from moral destruction because it put in place its version of the law in 1998? Has Connecticut added I-95 exits to Sodom and Gomorrah because it passed one back in 1991?

To be successful, opponents of the Maine law would have to persuade the public that either those states have suffered under their protection laws or there is something especially defective about this state’s character, perhaps that, unlike all the other residents of New England, Mainers are more susceptible to moral degradation.

That’s not an argument that I would want to make, but then I’m not trying to raise $2 million.

Todd Benoit is the editorial page editor of the Bangor Daily News.