Dread and the AB 101 Decision

A few days ago, I was talking with a friend of mine about fear.

He is a man in late middle age, a successful professional and a homosexual. The subject of our discussion was the impact of that otherwise irrelevant fact on his working life. “The firm where I began,” he said, “was a great place, but some of the most important senior executives were deeply conservative people--well, men really. There weren’t any women executives in those days.

“Anyway, I lived in terror that they would find out that I was gay, and give me the sack. I used to avoid social occasions and, when I couldn’t, I’d ask a woman friend to go with me as my date. Looking back, I find the memory of that kind of charade utterly humiliating. But times changed and so, more or less, did my firm. I became more secure and figured that, as long as I was discreet, I didn’t have too much to worry about. But every time I didn’t get a promotion or a particular assignment I thought I deserved, the fear would come gnawing back at me.

“I’m on my own now, but I’ve never forgotten that or stopped resenting it. You know, there are two things in the world I really love: One is my work and the other is the world of real affection I’ve found with my friends. I can’t tell you what a burden it was to live all those years with the fear that having one meant sacrificing the other.”

Gov. Pete Wilson now has just a little more than two weeks in which to decide whether tens of thousands of Californians also will be made to bear such a burden. On his desk is AB 101, a bill that would extend to gay and lesbian people those elemental legal protections that now prohibit discrimination in hiring and promotion on the basis of race, religion, gender or national origin.

In its final form, AB 101, which was introduced by Assemblyman Terry B. Friedman (D-West L.A.), covers only employment issues. It was stripped of its prohibitions against housing discrimination in order to win Republican lawmakers’ support and the governor’s signature.

Even so, Wilson, who earlier had seemed to indicate his willingness to sign such a measure, is undecided. According to a spokesman, the governor has received more than 100,000 letters and phone calls concerning AB 101, more than he has received on any other issue, including his controversial tax increase.

In a recent interview, Wilson, who was well supported by gay Republicans during his last campaign, said that he opposes “discrimination of any kind,” but wonders how “you go about affording a remedy that doesn’t impose an undue burden?”

But this bill’s potential burdens to California’s business community are, in fact, minimal. Under current law, employment discrimination cases constitute a negligible part of the civil courts’ docket. Moreover, religious organizations and businesses with less than five employees are exempt from complying with provisions of the state’s Fair Employment and Housing Act, which AB 101 would amend.

What this suggests is that Wilson has his eye not so much on the state’s commercial interests, as on the preoccupations of the homophobic right-wing in his own party.

The walkout of about 600 delegates to the GOP’s recent state convention was staged, in part, to protest Wilson’s willingness to extend basic human rights to gay and lesbian people. Ultimately, the convention approved a resolution condemning AB 101 as “anti-family” and calling on the governor to veto it.

Republican Congressman Robert K. Dornan warned Wilson that signing the bill would ignite a “firestorm” and make him a “one-term governor.” Rep. William Dannemeyer of Fullerton, as is his habit, called homosexuals “perverts” and “deviants” and charged they had created a “degeneration in the civic life” of San Francisco. He accused the state’s Republican U.S. Senator, John Seymour, of being an agent of “the homosexual movement in California.” Their comments followed a legislative debate in which Republican Assemblyman David Knowles assailed gay people in terms so sexually explicit and vitriolic that his hometown newspaper, the Sacramento Bee, called his speech “vile.”

What goes almost unremarked upon in all this is the larger fact that gay and lesbian Americans are routinely subjected to bigoted abuse by public officials. No other group in our society still is made to suffer such cruel indignity. To find its equal, one would have to return to the the darkest days of white supremacist resistance to the civil rights movement.

To accept the admissibility of such rhetoric into our public discourse, one also must accept the moral reasoning that was at the heart of one of this nation’s greatest public infamies, the Dred Scott decision. Dred Scott is not often studied these days, but in his book “Belonging to America: Equal Citizenship and the Constitution” UCLA law professor Kenneth L. Karst, one of our most humane constitutional scholars, offers a fresh and disturbing interpretation of the case and its consequences.

What was most evil about Chief Justice Roger B. Taney’s opinion in the case, Karst argues, was his insistence that “blacks were excluded from membership in the national community because they had been ‘considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority. . . . ‘

“Taney went out of his way to say that black people had been not merely subjugated but stigmatized with ‘deep and enduring marks of inferiority and degradation.’ In emphasizing the permanence of inferior status, Taney was asserting that blacks, as a racial group, had been consigned to a lower caste--a position entirely inconsistent with membership in the ‘people of the United States.’ ”

All talk of “anti-family” policies and “traditional values” aside, is this not precisely the reasoning of those officials who insist that mere sexual preference is sufficient to exclude a man or woman from our law’s most basic protections?

As Wilson weighs the fate of AB 101 over the next two weeks, he might keep that in mind. He might also wish to consider Karst’s broader conception of what we all have at stake in controversies such as this:

“Any community shares a history and imagines a destiny. Both these . . . are bound up with the community-defining role of law. And in assigning meaning to present behavior, law speaks not only to the question, Who are we? but also to the question, Who shall ‘we’ be tomorrow?”

It is up to Pete Wilson to decide whether California will answer those questions in the broad and liberating language of justice and equity or in the crabbed, bitter accent of the fearful past.