Gay rights are coming to Charlotte, and to my own surprise, the prospect fills me with near-perfect ambivalence.
City Council will soon enact a prohibition banning discrimination in employment and public accommodations on the basis of sexual orientation — with virtual unanimity among Council members as to the appropriateness of such a regulation, though with some disagreement as to its details, according to a discussion Council held last week. (Even the Republicans are trying to get in good with the gay community by touting their own version of a non-discrimination ordinance.)
This comes more than five years after the enactment of House Bill 2, which invalidated a previous Charlotte ordinance protecting LGBTQ individuals, barred local governments from passing such ordinances, and prompted a national backlash that may have cost North Carolina billions.
In the wake of that backlash, state lawmakers adopted a sunset provision so their ban on local non-discrimination ordinances would expire in December 2020. Since its expiration, a number of local governments have rushed to adopt protections for gay people, and Charlotte’s now set to do the same.
This is all to the good. It’s only right — as a matter of common decency and progressive thinking — to ban discrimination on the basis of sexual orientation.
Why, then, do I remain unmoved?
Law, it seems, performs three functions: proscription, prophylaxis, and symbolism. (These are perhaps less distinct categories than gradations on a spectrum.)
Law as proscription is practical, aimed at stopping concrete evils that are actually occurring and not merely contemplated or hypothetical. Classic American examples of law functioning in this manner include the 13th Amendment, which banned slavery, the Civil Rights Act of 1964, which aimed to stop racial discrimination in interstate commerce, and the Voting Rights Act of 1965, which worked to halt such discrimination at the ballot box.
Many of the gay rights cases handed down by the Supreme Court in recent decades can be fairly described as falling into this category.
- Romer v. Evans (1996) struck down a state constitutional amendment in Colorado that prohibited gay and lesbian people from seeking anti-discrimination protection from their local governments, rendering them “stranger[s] to [the] laws,” a sort of intolerable ostracism from the community and body politic.
- Lawrence v. Texas (2003) invalidated state sodomy laws as they applied to adults, a reform needed to remedy the practical problem of branding as a criminal anyone who engaged in same-sex sexual relations.
- United States v. Windsor (2013) removed the federal definition of marriage as between one man and one woman, which worked to the material detriment of same-sex couples whose marriages were allowed under state law but not recognized by federal law. (For example, Edie Windsor, who challenged the Defense of Marriage Act, would have been required to pay more than $350,000 in inheritance taxes following her wife’s death if the law had not been invalidated.)
- Obergefell v. Hodges (2015) granted same-sex couples the right to marry, giving millions of people the ability to wed their partners, something previously denied to them in most states.
- And Bostock v. Clayton County (2020) interpreted federal law prohibiting employment discrimination on the basis of sex as covering sexual orientation and gender identity.
In each of these situations, legal change served the practical end of proscribing discriminatory behaviors that were, in fact, occurring.
Law as prophylaxis is preventative. To use the verbiage of old-time religion, laws serving this function aim to stop backsliding.
The gay rights movement has made great strides since Stonewall. In addition to the legal advances outlined above, big business treats gay folks as an important customer and employee constituency, and public opinion overwhelmingly supports equality. Consider some polling data from Gallup:
- 93% of Americans support employment equality for gay people
- 80% support decriminalization of same-sex sexual activity
- 75% support allowing gay people to adopt children
- 70% support same-sex marriage
- 70% support allowing gay people to serve in the military
- 66% support allowing transgender people to serve in the military
(An interesting note: As to some of these issues, it seems the answers became so lopsided over time that Gallup stopped asking the questions. Another interesting note: Gallup’s respondents in May 2020 believed the nationwide approval rate for same-sex marriage to be about 20 points lower than it actually was, which suggests the perception of progress lags behind the achievement of progress. This may help to explain the felt imperative to push for anti-discrimination laws and ordinances: Such laws seek to combat hostility that isn’t really there, at least not to the degree many think it is.)
The gay community’s battle in the culture wars is largely over, and we won. That’s not to say the community scored a perfect victory, but what campaign ever does?
Against this kind of backdrop, law can function as prophylaxis, an attempt to shore up victories and prevent opponents of LGBTQ equality from gaining a foothold and turning back the tide of progress. This is law as vigilance, a deliberate commitment to preserve that which has been accomplished.
Law as symbolism is communicative. Speaking through the people’s duly-elected representatives, law sends a message about who counts as full members of the community and which values the community holds most dear.
When law functions as symbolism, it’s concerned less with the practical affairs of politics than with the abstractions of civic faith, an imitation of Thomas Jefferson’s declaration that certain truths are self-evident.
Symbols matter as components of our civic faith just as the cross matters to Christianity. Such symbols, as a form of shorthand, do much to both inform and describe who we are as a people. In this way, symbols possess immense power.
This power can inspire destruction and inhumanity. The lesson of the European wars of religion, or the Terror following the French Revolution, or the Stalinist famines, is that political power motivated by fidelity to symbols may know no limit in its applications when loosed upon the people by true believers dedicated to the uncompromising furtherance of abstractions that are incongruous with the diverse, messy realities of human existence.
Abstract articles of faith are, by definition, pure. We, as fallible human beings, are incapable of matching any idea’s purity, and no matter our efforts, we shall always fall short of perfection. If uncompromising, total achievement of an ideal is our goal — and if we interpret any shortcoming as failure, instead of imperfect, tolerable victory — we risk the temptation of seeking to crush anyone who dissents or expresses contentment with our progress, no matter the mildness of their critique or the inconsequence of their protest. Intolerant disagreement over symbols and the ideas they embody thus tends to violence and war, either of the intellectual and spiritual sort in the best of circumstances or of the physical sort in the worst of circumstances.
Into which of these categories — proscription, prophylaxis, or symbolism — does Charlotte’s proposed non-discrimination ordinance fall? What would be the function of this law?
The ordinance looks like it would fall into the first category, that of law as proscription: It bans certain behaviors. But nowhere in the public discussion has anyone satisfactorily answered the key question if the ordinance’s aim is, in fact, practical: How much anti-gay discrimination actually occurs in Charlotte?
It would be foolish to think no such discrimination exists in a city of nearly a million people, but it would be equally mistaken to think such discrimination occurs with significant frequency when, as noted above, there’s overwhelming public support for LGBTQ equality. On the employment front, it’s also important to note that virtually every big business in America has adopted policies against anti-gay discrimination, and many actively celebrate the LGBTQ community. Locally, this manifests itself perhaps most clearly in Charlotte Pride, which has about as much corporate sponsorship as the chamber of commerce.
The lack of a clear enforcement mechanism in the ordinance, which some LGBTQ advocates have criticized, also makes it unlikely the proposal aims at a practical end, for surely a robust enforcement regime would accompany any law primarily aimed at actually stopping certain bad behavior.
Whatever the speculation on the amount of discrimination occurring in Charlotte or whether the ordinance as drafted would effectively stop such discrimination, that the ordinance’s sponsors and supporters have paid such scant attention to the frequency of such discrimination is a significant hint that the proposal’s aim is not, or at least is not primarily, proscriptive and practical.
The ordinance would also seem to be an unlikely prophylaxis.
To the degree progress on gay rights faces any threat in America, it comes not from a potential groundswell of opposition at the local level, but from above, specifically from a Supreme Court more conservative than we have had in decades, and maybe in almost a century.
In the name of religious freedom, the justices are poised to create exemptions to anti-discrimination laws and ordinances like the one under consideration in Charlotte, exemptions that would threaten to swallow any rule of non-discrimination. They have hinted at such possibilities in recent cases, including Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and Fulton v. Philadelphia (2021).
(The former case involved a baker who refused to a create a wedding cake for a gay couple. A confession: My sympathies lie with the baker, or at least not with the complainants. Hailing a guy into court and arraying the apparatus of the state against him because he has religious scruples about preparing a wedding cake strikes me as bullying. The episode also reeks of triviality: While the state denying me the right to marry my betrothed would be an injustice, a baker refusing to sell me a cake to celebrate the occasion would count as a mere annoyance. The latter case involved a city policy prohibiting adoption agencies from discriminating against same-sex couples when placing orphans in foster homes. A Catholic social services agency objected to the policy as a violation of its religious freedom, and the Court, in a narrow decision, unanimously ruled against the city and for the agency.)
Armed with the power “to say what the law is,” a reactionary Supreme Court poses the greatest threat to equality for gay people, and it’s there that prophylaxis — in the form of court reform — is most needed. Meanwhile, a local non-discrimination ordinance in Charlotte will do little to prevent backsliding.
We’re left, then, with symbolism, a function the ordinance would no doubt perform.
If City Council enacts the proposed regulation, it will be sending a message of inclusivity and acceptance.
Reform-minded individuals ought to welcome such a declaration, but we who think our politics and economics are broken because of systemic injustices and inequities fueled by class and race should also be wary.
The non-discrimination ordinance represents a cheap kind of progressivism — literally: It’s free for Charlotte to approve the proposal, and the city will incur neither significant costs nor meaningful burdens by doing so. Adoption of a non-discrimination ordinance will be, in a word, performative.
Its approval will allow the people of Charlotte, especially its civic leaders, to pat themselves on the back as forward-looking and right-thinking residents of the New South — while they plow hundreds of millions of dollars a year into a failed model of policing that criminalizes poverty without preventing or solving crime; while working class people struggle to keep roofs over their heads; while kids born into poverty become adults who die in poverty; while gentrification tears through the community; while billionaires and other monied interests maintain their stranglehold on our community and its future.
Because symbols possess the power to tell us and others who we are, who we aren’t, who belongs, and who doesn’t, they offer a temptation to tribalism, which, when invoked, may distract us from the continued privilege of the powerful few and the persistent marginalization of the powerless many.
When our leaders present us with such feeble political fare, perhaps feelings of ambivalence should not, after all, surprise us.