Gays are too wealthy and successful to be discriminated against, according to Randy Thomas’ January 14th blog post.

I think everyone deserves the same basic set of civil rights across the board. However, many gay activists proclaim that they deserve special civil rights protections for just about any legislative battle that they pitch. The Civil Rights act of 1964 lays out three criteria for protected class status: [emphasis mine]

1. Immutable Characteristics
2. Proven widespread pattern of discrimination
3. Economic Disenfranchisement

Homosexuality is far from proven immutable. There isn’t a proven widespread pattern of discrimination for those who identify as gay either. But the point of this post and [the statistics presented in the post] are proof that not only do those who identify as gay compete for good salaries very well… they get them. The gay identified community is the most prosperous, median salary wise, community in the country.

Believe what you will about what the gay identified community deserves or needs but the truth is that using “civil rights” language is disingenuous in that they do not meet the criteria set forth in The Civil Rights Act. It is not I saying this but the act itself. [emphasis mine]

Another XGW writer and I read through the Civil Rights Act of 1964 and could find no such explicit criteria spelled out. However, we wanted to be absolutely certain so we decided to consult a professional concerning Randy’s conclusions on the fine points of Constitutional law. We asked Robert Crook, an attorney based in California (and Senior Associate at his law firm), to provide his opinion as to the legal conclusions set forth in the post. Here is what we were told:

The current version of the Act is found at 42 USCS § 2000e et seq.

Randy is incorrect when he says that the Act “lays out three criteria for protected class status. Quoting from a portion of the Act at 42 USCS §2000e-2:

“Unlawful employment practices

(a) Employer practices. It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin;”
There is no mention of the three “criteria” that Randy states. The “religion” prong, for example, would not fit into any of the criteria if Randy was correct.

So where does this “criteria” come from? As you know, as individuals we are protected by the U.S. and State Constitutions, a number of state and federal statutes (including the Voting Rights Act set forth at 42 USCS §1973), and case law interpreting this body of law. “Immutable Characteristics,” “Proven widespread pattern of discrimination,” and “Economic Disenfranchisement” are terms that are used in the large body of case law that analyzes a variety of statutes and codes. They are not specific to any one statute.

Here is the bottom line: There is no Amendment to the Constitution, no case, and no statute that limits civil rights protection to Randy’s three criteria. Civil rights legislation is drafted to be applied broadly in favor of protection, not in limiting it. If Randy’s criteria were true, it would strip away virtually everyone’s civil rights protections.

Mr. Crook also had something to say about Randy’s use of statistics:

Randy is quoting “statistics” from two or more sources, and making conclusions, without citing how the data was obtained. This is flawed methodology. Statistics are only as reliable as the methodology in obtaining the data.

“. . . according to this article using statistics from Rivendell Media and Absolut . . .”

– Randy does not cite what methodology was used in this study, and where the study was taking place. I believe Absolut makes vodka. I imagine that any statistics would be gathered with the intent of selling liquor rather than providing a reputable cross-section of the U.S. population.

“. . . according to US census data . . .”

The census never inquired about sexual orientation, although some have tried to extrapolate data from the most recent census to determine the number of gay households.

Randy also ignores the fact that untold numbers of GLBT persons remain in the closet, petrified of the consequences they might face should they come out – consequences that legally include workplace termination.

In 1998, the Policy Institute of the National Gay and Lesbian Task Force and the Institute for Gay and Lesbian Strategic Studies issued a joint study entitled “Income Inflation: The Myth of Affluence Among Gay, Lesbian and Bisexual Americans,” which was later published in the May 2000 issue of Demography. The study found that gays come from all walks of life, including low economic status, and that discrimination they face on the basis of their orientation has affected this population’s earning power. In addition, the NGLTF’s article on the study presents us with a familiar situation:

Supreme Court Justice Antonin Scalia cited misused market research statistics on gay and lesbian people when he wrote that “high disposable income” gave gay people “disproportionate political power,” and that Colorado voters should be permitted to rein in that power by banning anti-discrimination protections for lesbian, gay and bisexual residents.

Randy, too, misuses market research in an attempt to “reign in the power” gays allegedly have. He also fails to mention that such criteria would automatically disqualify others – people of faith for instance – from civil rights protections.

Let’s take an example with which I am familiar, the Jewish people. According to the National Jewish Population Survey (2000-2001), we have been quite successful as a people in this country and our income is above the median. We are also statistically counted among the more educated Americans. But according to Randy’s logic, any hateful actions taken against us Jews are really just society’s way of keeping us “in check”- we’re too wealthy to really feel it when the “K word” is hurled at us, or when swastikas are spray painted on our family gravestones.

Never mind the fact that there are impoverished Jews – and gays – who don’t have money to make them feel better when they’re put down. In addition, while a case could be made for immutable characteristics in certain Jewish populations, Christian sects most certainly lack this trait. And again, if we follow his argument, Christians like Randy should also be stripped of their protected status as well.

While researching the Civil Rights Act of 1964 and Randy’s explicit criteria, the only other document I could find that supported Randy’s view was a pundit piece put out by the Liberty Council’s National Liberty Journal. The piece is entitled, “Homosexual Behavior Should Not Be Accorded Special Protection” by Mathew D. Staver [1]. Is it a coincidence that both Randy and Staver use the same argument to push the same viewpoint on the same topic? Probably not, considering the latter gave this glowing endorsement of the organization in which Randy serves as vice president:

Exodus [International] provides an indisputable voice of reason backed by a chorus of voices whose changed lives. As Exodus celebrates its 30th year of the freedom Conference, its hand of compassion is needed now more ever [sic] before.


For good measure, I looked up “civil rights” in the Merriam-Webster Dictionary:

the nonpolitical rights of a citizen; especially : the rights of personal liberty guaranteed to United States citizens by the 13th and 14th amendments to the Constitution and by acts of Congress

The only qualification someone needs to be afforded civil rights protection is to be a United States citizen. The Civil Rights Act of 1964 did not give new rights to anyone per se. Instead it addressed through law the serious inequities experienced by certain minorities which prevented them from freely and fairly experiencing those rights which our Constitution recognizes as “self evident” and a gift from our Creator.

As someone who, in his own words, does not identify as a homosexual, Randy does not need to be concerned about being denied employment, or being the victim of hate by the non-gay community, or being denied recognition and rights associated with marrying his long-term partner.

The bottom line is that his use of the act is merely a Red Herring. Exodus is no longer primarily a religious organization ministering to those who want help; they are a political powerhouse backed by James Dobson’s Focus on the Family who actively lobby to deny the GLBT population equal standing as citizens. It is in Randy’s best interest to further that cause whenever he can, even if it means distorting the language and intent of the United States Constitution.

[1] We should note that Mathew D. Staver is the same Liberty Counsel attorney who threatend XGW with legal action on behalf of Exodus in 2006.

Categorized in: