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Thursday, October 30, 1997 - Page updated at 12:00 AM

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Pro/Con -- Initiative 677: Gay Rights

INITIATIVE 677 would make job discrimination against homosexuals illegal under state law. Proponents say a state law is needed and that all gay workers need legal recourse to sue. Opponents say the measure would trample employers' rights not to hire people they find morally objectionable.

------------- PRO By Gary Locke -------------

INITIATIVE 677 is one of the simplest, shortest and clearest initiatives ever put before the people of Washington. It is also one of the most important. The sole purpose of 677 is to outlaw job discrimination on the basis of sexual orientation - to assure for gay, lesbian and bisexual people the same employment protection enjoyed by other people in our state and society.

The radical right has waged a smear campaign against Initiative 677. They falsely claim it would give "special rights" to gays and lesbians. In reality, I-677 is about same rights and simple justice for all people.

My own support for I-677 is founded upon my values and experiences and by my own personal heritage as an American.

Like many of you, I am the son and grandson of immigrants. When my grandfather arrived in America, he settled in Olympia. He worked as a houseboy about a mile from the governor's mansion. As an immigrant, he faced exactly the same problem faced by many gay and lesbian people in our state today: the struggle to overcome injustice and discrimination in order to earn a living for himself and his family.

I recount to you this story not because it is unique to my family and my heritage, but because it is part of our shared heritage as Americans.

Some of our ancestors came over on the Mayflower; others met the boat. Still others traveled in steerage, or chained beneath the decks as slaves. However they got here, they had to earn a living and to overcome discrimination. Our state and nation are the product of this struggle; we and our children are its heirs and beneficiaries.

The reason that I-677 is so important is because the struggle for equality and the right to work to earn a living is far from over in our nation or the state of Washington. No one knows this better than gay and lesbian people:

-- David Biviano was running a successful community corrections program in Eastern Washington, helping young juvenile offenders to straighten out their lives. David was very good at his job. But when his employers learned that he is gay, they fired David despite his superior job performance. There were no complaints, no suggestion of impropriety - just fear of negative publicity and the unknown. As a result, David and his family lost their livelihood - and the children of Eastern Washington lost a true friend and advocate - for no reason except that he is gay.

-- Sue Kirchofer was a purchasing agent for a distribution company for three years. She liked her job and received regular raises, promotions and recognition for her excellent work. But when her employer found out that Sue is a lesbian and had used part of her vacation to compete in the Gay Games, he fired her without warning - and without severance pay. Not only that, but he immediately terminated her health insurance and other benefits. As Sue herself has stated, "It was unfair to fire me because of my sexual orientation. I was a good employee. I should have been treated the same as everybody else."

The fact that David and Sue lost their jobs because of their sexual orientation is tragic and shocking. What is most tragic, and most shocking, is the fact that it was all perfectly legal under our current state law.

When I tell people that it is legal to fire gays and lesbians simply because of their sexual orientation, most at first refuse to believe that it's true.

Initiative 677 isn't a gay issue or a straight issue. It's not a Democrat issue, a Republican issue, a labor issue or a business issue. Instead, I-677 is an issue for every American and every Washingtonian - an issue for our friends, family and neighbors, for our sisters and brothers, for every person who just wants the basic human right to earn a living and use the strength, wisdom and talents that God has given them to pull their own weight and make their own contribution to this world.

A vote for I-677 will end discrimination in the workplace. I urge you to join me in voting yes on I-677.

Gary Locke is Washington's governor.

-------------- CON by James Rigby --------------

THE proponents of Initiative 677 seek to create special rights for an undefined group under the guise of fairness. If passed, I-677 would make it illegal in Washington state to discriminate in employment on the basis of sexual orientation and gender identity (SOGI).

The rule at common law, in the United States in general and Washington state in particular, has always been that absent a contract or specific statute, an employer may dismiss an employee at will. In other words, an employer does not need any reason whatsoever to dismiss an employee, absent an agreement or prescriptive statute. A recent example is where the Kingdome food vendor dismissed an employee for refusing to wear the company visor while selling food.

The proponents of I-677 have failed to present any studies that demonstrate that there is in fact any significant SOGI discrimination related to employment. In Washington state, there are millions of people and have been hundreds if not thousands of lawsuits involving employment discrimination, but the proponents of I-677 have been only able to point to at most 60 incidents of anti-homosexual discrimination in the last 20 years. An average of at most three incidents of SOGI discrimination per year is not a large enough problem to impose a new set of regulations on our economy.

If I-677 is not necessary to ensure that homosexuals have access to jobs, what then is its purpose? I-677 is presented as an issue of fairness. It is just not fair, claim I-677 proponents, for someone to be denied a job based upon SOGI discrimination. An attempt is then often made to make an analogy between discrimination based upon race, creed or gender on one hand and SOGI on the other. That analogy, however, does not stand up to analysis.

Discrimination based upon race has had a long and troubled history in our country. Our Constitution did not count Indians as people and counted slaves as only three-fifths of a person. The Civil War was fought over the issue of slavery and it resulted in the adoption of the 13th Amendment prohibiting slavery. Still, even in the 20th century, discrimination based upon race has been rampant. Until the 1960s, many states had laws that resulted in a large number of persons being denied equal treatment based upon race. Consequently, we as a nation have determined, after literally hundreds of years of conflict, that discrimination based upon race shall be prohibited by law.

Religious freedom is also a cultural issue that predates the formation of our country. As we all know, the original Europeans who settled in America did so in order to practice the religion of their choice. The freedom of religion, like the freedoms of speech and the press, is incorporated in the first amendment to our Constitution. Based upon the Constitution and this history, discrimination based upon religion has been prohibited by law.

Discrimination based upon gender also is an issue with which our nation has struggled. Our Constitution did not provide women with the right to vote. It was not until 1920 when the 19th Amendment was ratified that women had the right to vote. Even so, during this century there has been widespread economic discrimination against women. Again, after decades of working through the issue, we as a nation decided that discrimination based upon gender would be prohibited by the force of law.

Discrimination based upon SOGI cannot be compared with discrimination based upon race, creed or gender. The freedom of religion is based upon our Constitution and the prohibitions against race and gender discrimination can be traced to amendments to the Constitution. There is no mention of SOGI in it. Our country was not founded because of nor has it been profoundly affected by SOGI discrimination. We agree as a society that one should not be judged by race, creed or gender. There is no such consensus with respect to SOGI discrimination.

If I-677 passes, it will have significant unintended consequences. It will, for instance, unavoidably result in quotas and baseless lawsuits. Since I-677 will make it illegal for employers to discriminate based upon SOGI, most employers will seek to adopt company policies that will ensure that they will not be sued.

The best way for an employer to avoid baseless SOGI discrimination lawsuits will be to adopt SOGI quotas, just as they have done with other types of discrimination laws. By identifying and preferentially hiring potential "victims" of SOGI discrimination, employers will be able to demonstrate that they do not have a policy of SOGI discrimination.

Significant unintended consequences also will arise out of the fact that I-677 does not define or identify who will be accorded protection from discrimination based upon "sexual orientation." Likewise, the term "gender self-identity" is undefined. What it comes down to is that anyone can claim to have any "sexual orientation," claim that they have suffered discrimination, and thereby extort special treatment and compensation from their employers.

In addition to creating special rights for an undefined class, I-677 will unfairly impose a new morality upon our state. While engaging in homosexual behavior may no longer constitute criminal behavior, many individuals still consider it to be immoral behavior. This belief is not based upon homophobia, meanness or hate. Rather, many people still follow the traditional teachings of the Bible that hold homosexual conduct to be immoral. While it is true that many churches have deviated from this traditional teaching, that is not the issue. The issue is whether or not we will impose upon everyone by force of law a morality that accepts and normalizes conduct that until very recently was considered to be criminal conduct. This is the real purpose behind I-677, to normalize what some consider to be immoral behavior.

One type of response to this commentary will be strings of epithets that will include: homophobe, hateful and uncaring. Such responses will be inappropriate. This article does not suggest that government agencies engage in SOGI discrimination nor does it suggest that the government should become involved with what people do in the privacy of their own homes.

We must, however, recognize that the laws we adopt do serve to create a public morality. The laws we adopt determine what conduct is acceptable in public and what public conduct will be forced upon others. When our society is so deeply divided on an issue that goes to the core of what it considers to be moral, it would be inappropriate to impose the extreme changes in behavior and thus morality that I-677 will coerce.

James Rigby is a Seattle attorney.

Copyright (c) 1997 Seattle Times Company, All Rights Reserved.

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