Anti-discrimination Action Alert: Call or comment in favor of SCR 1031

The Arizona Senate is moving in high speed; there is still time for both progress and mischief and the senators are trying to squeeze in as much of both as possible before the session ends. In the "progress" category is a legislatively referred constitutional amendment (LRCA), SCR 1031, that would totally forbid the state to discriminate against or grant preferential to anyone in hiring, contracting, or univerity admisions.

Specifically, if sent to and approved by the voters, it would add a Section 36 to Article II of the Arizona Constitution reading

This state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

That sort of fundamentally equal treatment should be something we can all support, but the measure, just like the Arizona Civil Rights Initiative that never quite materialized in 2008, has its opponents, who claim that affirmative action programs prevent racial discrimination. That's outright nonsense: the way to not discriminate on the basis of ethnicity into account is to consciously stop discriminating on the basis of ethnicity, which is not the same thing as giving preferences.

There is a reasonably compelling argument to be made for government affirmative action programs as a sort of remedy for negative discrimination in the immediate past, so as not to "lock in" for a generation or longer the results of such discrimination. If the government for a time deliberately did not hire Martians, it would make sense to give preference to Martians in its next few hires so as not to keep Martians more or less locked out until all the Earthlings retire, and to avoid the effects such a policy would have on the next generation of Martians (and Earthhlings!) But Arizona's preference programs, documented in a 2007 Goldwater Institute whitepaper, are not time-limited remedies to past discrimination and not narrowly tailored in intent or effect even if they avoid quotas. At best they are responses to discrimination of decades ago, but it's more reasonable to call them dodgy attempts to effect, in a roundabout way, group rights and ethnic pillarization. Not so dodgy as New Haven firefighter promotions, but dodgy nonetheless.

Proponents of continued ethnic discrimination have a difficult question to answer, and you should ask them it whenever you get the chance: "How long should discrimination persist, and under what conditions would you support its end?" The answer "as long as there is inequality between ethnic groups" is inadequate. If imbalances still exist, it is likely that they are not the direct result of past discrimination. It is evident that further "positive" or "reactionary" discrimination to remedy such imbalances will be ineffective, in addition to being unjust.

That injustice, acknowledged in both the majority opinion and dissent in Grutter v Bollinger (the U.S. Supreme Court case upholding discriminatory programs if narrowly tailored and limited in duration), is now holding back race relations and may be the cause of much residual ethnic prejudice. We're at the point where many a person of European or South or East Asian ancestry, on seeing someone whose ancestors came from the "global south" be admitted to a selective program at a state university, receive a state contract, or be hired as a state employee, suspects that that admittee, that contractor, that employee may have gotten there through an unfair and discriminatory process. That is not a situation we'd like the suspected "affirmative action" admittees, contractors, or hires to be put in.

The moral authority of preference programs expired decades ago. Light up the switchboards tomorrow, calling members of the Senate Appropriations Committee, asking them to move SCR 1031 along in the process. If you are signed up for the ALIS/Request to Speak system, leave a comment or request to speak. And it wouldn't hurt to leave a message for Senate President Thayer Verschoor saying that although LRCAs are not usually brought to a vote in off-years, the matter of racial discrimination is important enought that SCR 1031 ought to at least receive a first reading.

To quote native Arizonan and retired Supreme Court Justice O'Connor's majority opinion in Grutter v Bollinger:

[Accordingly,] race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.

Arizona has established no sunset or periodic review for its discriminatory programs. With the state Senate's help, let's sunset them ourselves in November 2009 or 2010.

Defeat the last acceptable form of gay-bashing: vote "no" on Proposition 102

It has become evident in the four years since Massachusetts began allowing same-sex couples to marry that the practice is harmless. Heterosexual couples are not splitting up because the gays are getting married. Both the institution of marriage and the nuclear family are as strong if not stronger than they were before the change.

Why, then, amend Arizona's constitution to effectively make Clause C of ARS 25-101, which prohibits marriage between persons of the same sex, a new, one-sentence Article 30? Two reasons present themselves: irrationality and confusion, or hatred. It is no longer acceptable to beat up homosexuals, call them names, or generally treat them nastily, not even in private life; prohibiting them to marry is the last way for louts and bigots to stick it to the gays. A great many of those supporting a Constitutional ban on gay marriage do it because it's the next best thing to mandating that there simply be no gays.

And then there are the confused. While in California last weekend I saw "Yes on Prop 8" sign-wavers waving pieces of posterboard with the slogan "Prop 8 is Religious Freedom". Gun book publisher Alan Korwin, in a recently e-mailed newsletter, said "the correct term is Holy Matrimony." In a similar vein, a correspondent, on learning of my position on this measure, e-mailed to ask "Do you believe churches should be required by law to marry all couples if legal marriages are performed at all on their private property?" The First Amendment to the US Constitution, and the corresponding provision of the Arizona Constitution, already prohibit the state to interfere in the marriage rites of religions. No amendment to the State constitution is needed to prevent the State from mandating that any religious organization marry homosexuals, just as none is required to prevent the State from mandating that Jewish temples marry Hindu couples. (Curiously, we do not hear the opposite complaint from these people, that the failure to recognize as civil marriage the religious marriage of e.g. homosexual Unitarian Universalist couples is an interference with religion.)

Confusion runs deeper, still. Many in the Ron Paul Mouse Army believe that the matter is mere Culture War and that gays can simply draw up a contract and be married. There is no possible private contract in our current legal order that carries with it the rights and responsibilities of marriage. Still others see this as an acceptable legislatively-sponsored compromise when compared to 2006's Proposition 107 initiative. Proposition 107, which would have forbid the State or any subdivision thereof to recognize both gay marriage and civil unions or domestic partnerships, was definitively defeated by the voters.

Unlike 2006's Proposition 107, Prop 102 leaves the "civil union" option open, but "civil unions" are but a second class "civil marriage". They are not portable between the states, they often (due to inertia) do not carry the same weight with employer-based insurance plans (yet another reason to move away from employer-based insurance!), they do not put homosexual couples on equal footing with heterosexuals for income tax purposes, nor for inheritance purposes, nor for immigration purposes. Civil unions and domestic partnerships can't even reliably prevent malicious outsiders from interfering with hospital visitation.

Even if we defeat Prop. 102, homosexual couples will still not be afforded equal rights in Arizona. But the defeat of Proposition 102 leaves the option open, for the next Legislature or some future, more humane Legislature to grant equal rights to homosexual couples. I strongly encourage you to vote it down and to advertise publicly, to your friends and co-workers, on your own 'blog, or on Facebook, that you are voting it down.

While you're at it, if you live in Congressional District 8, vote for one of the opponents of Tim Bee, a co-sponsor of this legislatively-referred constitutional amendment (LRCA). Incumbent Gabrielle Giffords is alright, but has shown that she is no Jim Kolbe. Coffee-shop owner and longshot Libertarian candidate Paul Davis could, on the other hand, fill Kolbe's shoes if given the chance, and deserves even a symbolic show of support.