Writings and observations

From 8802 to HB 2

idaho RANDY
STAPILUS
 
Idaho

In the spring of 1941 the United States, not yet at war but observing that much of the rest of the world was, was cranking its defense industry to full speed. It hit road bumps, one being a systematic unwillingness by some employers to hire certain workers, often on the basis of race or religion.

To counter this, President Franklin Roosevelt signed Executive Order 8802. He declared that, “There is evidence available that needed workers have been barred from industries engaged in defense production solely because of considerations of race, creed, color or national origin, to the detriment of workers’ morale and of national unity.” And he ordered that defense contractors hire and treat employees the same regardless of “race, creed, color, or national origin,” not just as a matter of fairness but also as a matter of national security.

This long preceded the civil rights movement, but if the language sounds familiar, that’s no accident. The move toward equity seeded in World War II later set a kind of bar. In areas far beyond national defense, Congress and state legislatures declared that, in varying ways and for diverse groups of people, large-scale and commonplace discrimination has occurred, and that pushing back against it is in the national or state interest.

The 20-plus hours of testimony last week in Boise over House Bill 2, the now-rejected proposal to “add the words” of sexual orientation and gender identity, was an emotional event on both sides, but questions of broader interest, touching all Idahoans, got little attention.

The experience of other states and Idaho cities that have adopted similar language indicates that actual usage of the law probably would be slight. Since Boise passed a similar ordinance in December 2012, either two complaints or none (depending on your analysis) have been filed, and quietly handled, under it. That would be in line with most of the 20 or so states that have passed similar laws; the few much-noted cases involving cake-bakers and florists are rare enough to serve better as fluke news stories rather than as harbingers of trends.

Discrimination against gay and transsexual people, however, is not rare and not hard to document in substantial numbers, and in many places has mirrored the experience of people originally covered under the “race, creed, color” approach. Not many other social segments mentioned as prospects for “covered” groups (tall people, obese, smokers, others) can claim that scale of negative treatment.

Is there a social problem here, a need for action, as Roosevelt cited in 1941? Departing Boise Police Chief Mike Masterson offered one, saying that communities will be safer with the law in place because people afraid to report violent attacks became more willing to do so after Boise changed its ordinance. “We’ll all enjoy a safer community if we add the words to protect sexual orientation and gender identity in our Human Rights Act,” he said.

Some business owners testified last week they are concerned about the possibility of lawsuits under HB2, but many others have called for the change, in other states and in Idaho; the Boise Chamber of Commerce, for example, endorsed the bill.

There’s a specific state interest as well, of course, in protecting the right of people to exercise their religion. (Though this isn’t the religion-v-gay rights battle some people seem to want to pitch; quite a few in the clergy supported HB2, as others opposed it.) If harassment against people of faith in Idaho does emerge, the legislature should have some work to do. But it seems improbable. In a state with Idaho’s richly-churched demographics, the idea of freedom of religion being at risk, while churchgoing people carry on as they always have in places like Seattle and Portland, seems a little far fetched.

Some of the critics of HB 2 made the useful point that protections in one place can mean a loss somewhere else. That’s not only true, it’s the reality underlying all kinds of legislation (the “ag-gag” law, for example, benefits one group and disadvantages others). In the case of HB2, and eventual future-numbered bills (which will emerge with time), as with other anti-discrimination legislation, any real evaluation has to put these elements in context. Do the people of America get more out of the right to discriminate by race, which advantaged some people, or out of a defense industry where that wasn’t allowed? Do Idaho and the people in it get more out of the current silence on sexual orientation and identity in discrimination law, or out of protections like those in HB 2?

That question won’t go away. It may resolve in the end, as these things often do, more on calculation than on feelings.

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