On Wednesday, March 15th, 2006, Tim Eyman wrote a guest column for The Seattle Times. I decided to take a chance on a brain aneurism and read the whole thing. Several times. And though I'm somewhat surprised to say it, I'm not mad. And evidently neither is he.
Let me explain.
Like Professor Harold Hill in "The Music Man", he makes his case by creating groundless fear and hysteria with a populist mix of truth, lies and sleight of hand, and by playing on the basic good nature of people in the community.
In "The Music Man", Professor Hill turned the presence of a pool hall in a community into a direct threat of chaos and anarchy requiring the immediate creation of a school band to offset its evil effects.
In Washington State, Mr. Eyman is turning the inclusion of "sexual orientation" in a long standing and benign anti-discrimination law into an attack of political arrogance on the part of our legislature, and the beginning of a slippery slope decline into chaos and anarchy. Only this time, the cure is to have the voters in the community engage directly to decide on this important issue and, as a pleasant side effect, pump money into his salary fund.
I think it's worth some effort to look at Mr. Eyman's approach in this guest column more closely:
For nearly a decade, we've been consistent: Significant public policy decisions should be made by the voters. Whether it was a public vote on the sports stadiums, $30 vehicle tabs, performance audits, caps on property-tax increases, or a smaller King County Council, we've believed that voters, and not politicians, make better decisions. And whatever the result of the vote, the citizenry more readily accepts the ultimate decision when it is made by the voters.
Note: Underlining is my emphasis and not the original author's.
It never hurts your cause to start out by telling people how essential they are to the policy making process, and that government in this state would come to a halt without them. And it's wise to tell voters that they really only need to engage on the big issues, the really important things.
What does qualify something as a "significant policy decision" requiring the direct engagement of the voters?By a strange coincidence, they are the ones that Mr. Eyman and his crew choose, and quite serendipitously, can turn a buck on. There is a phase for this kind of scam, it's called "Double-dipping". It's when you get people to pay for the same thing twice. The first time is when the voters pay their elected representatives to legislate for us, and be accountable to us. The second time is when the people pay Messrs. Eyman, Fagan and Fagan for proposing legislation for which, win, lose or draw, none of them are accountable to anyone.
Follow up by telling the voters how much smarter they are than the politicians, and how much better the decisions they make are as a result. That’s as may be, but I like to believe that people, both voters and politicians are, by their nature, good, and that they want to do "the right thing". It is always easier to believe in that goodness when policy advocacy, by the legislature or by the voters, is done in the full light of day. In that respect Mr. Eyman skates close to the truth but ultimately misses the mark.
Unfortunately, history is filled with instances where good people are convinced that terrible ideas are "the right thing". Mr. Eyman continues:
Everyone agrees that House Bill 2661 is a significant, impactful public-policy decision. It takes a term that most of us are somewhat familiar with, "sexual orientation," and defines it in a unique way. Here's the definition as written in the bill: " 'Sexual orientation' means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, 'gender expression or identity' means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth."
Next, you have to really convince people that the wool is being pulled over their eyes and that they are hillbilly rubes if they don't see it. "This anti-discrimination bill thing is really important. It will have a big affect on our community," Mr. Eyman is saying, "and the arrogant politicians are changing the definitions of words for some evil and nefarious purpose of their own."
Really. First, stating that "everyone agrees" the bill is "significant and
impactful" without actually explaining what it does and doesn't do and who it really impacts is intended to inspire fear of the unknown. And if you are trying to make a high-minded point about people playing games with words and definitions, I suggest you avoid using words like “
impactful” that do not appear in any mainstream dictionaries. Gracious, it’s almost as though Mr. Eyman is seeking to bamboozle people by
obfuscating the truth.
In reality, there are exactly two groups of people who are affected by this bill:
- People who are unfairly denied employment, housing, insurance, and other public accommodations because of their real or perceived sexual orientation.
- People who unfairly deny employment, housing, insurance, and other public accommodations on the basis of someone's real or perceived sexual orientation.
Unless voters fall into one of these two groups, this bill has no material effect on their lives at all. People who unfairly discriminate in Washington State are a minority, but they do exist. And it’s for this reason that HB2661 protects every single person in Washington State regardless of their sexual orientation.
That includes a straight man applying for a job when the person making the hiring decision is gay, as well as a lesbian applying for housing when the landlord is a straight woman.Given the
Reverend Ken Hutcherson’s recent false claim that the only “proven” case of discrimination based on sexual orientation was against a heterosexual man, I would expect straight people, and the Reverend himself, to be dancing for joy in the streets at the protection that HB2661 provides them*.
* Hutch. Dancing. Hearty apologies for that hard to banish visual. And according to the dictionary definitions that I perused, the bill's
definition of sexual orientation is pretty much text-book. Additionally,
Wikipedia makes the observation that:
"The term sexual orientation may also refer to the "identity" of a person, either by choice or as an expression of an inner attribute."
If Wikipedia, the open source encyclopedia that is authored and critiqued by the internet community, defines "sexual orientation" the same way as it is defined in HB2661, then I think Mr. Eyman’s claims that it has been redefined in a "unique way" are clearly proven false. Mr. Eyman continues:
During floor debate on the bill, Colfax Rep. Don Cox said it well, describing the bill as "ill-defined" and open to many interpretations. "We limit liberty when we ask citizens to interpret one another's sexual orientation, gender expression or gender identity," Cox said. "In the push and pull of life, sexual orientation is not apparent and is difficult to determine. Please consider the possibilities for misinterpretation in the daily exercise of commerce, housing, employment, public accommodation, real estate, credit, or insurance."
He said the bill creates the possibility that responsible citizens could put themselves at risk of "accusation, investigation, findings of discrimination and penalties without intentional wrongdoing." Laws that put citizens on the defensive against accusations could be "an incubator for an atmosphere of protectiveness rather than openness," he said.
There are already a slew of classes that have been protected for years under this same anti-discrimination legislation. In many cases it’s impossible to tell by looking at people whether they are a member of one of these existing classes either.
Where is the body of case law that proves there is already a problem with interpreting whether someone is in a protected class or not? Anyone? Anyone? Buehler? No citations and no proof.
Here is
the language from HB2661 showing all the other groups that are already protected under our existing anti-discrimination law in
bold:
The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, or the presence of any sensory, mental, or physical disability or the use of a trained
dog guide or service animal by a disabled person are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.
Let’s try substituting the groups in
bold into Rep. Cox’s statement and see how they fare:
"We limit liberty when we ask citizens to interpret one another's race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age,
or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person,”
There is no limitation of liberty here; in fact there is an assurance of liberty for people in these groups. Is there any resident of Washington State who deserves less than this? When viewed in the clear sunlight of comparison, the position of Rep. Cox and Mr. Eyman is taken with little critical thought and is discriminatory and divisive.
No state in the nation has a law written this way. If we're going to be a guinea pig for experimental legislation like HB 2661, it's important for there to be a thorough debate and discussion. The consequences of this bill, both intended and unintended, need to be examined and probed.
Fear, Uncertainty and Doubt, the Three Horsemen of the Apocryphal ride again. This legislation is not even vaguely experimental. It is exactly the same legislation that has existed for years in this state to protect other groups from unfair discrimination. Why then, I wonder, is it suddenly toxic, dangerous, and experimental?
The statement that “No state in the nation has a law written this way” may be accurate, I’m sure no two laws in this country are written exactly alike; but it has the dubious virtue of hiding the truth as well.
It’s the truth that the vast majority of cities, counties, municipalities, and states in this country have anti-discrimination laws on their books. It’s the truth that many of those cities, counties, and municipalities also include sexual orientation in those anti-discrimination laws today, including Washington State’s own King County. It’s also the truth that several states, including
Connecticut,
Massachusetts,
Maine,
New Hampshire,
Rhode Island, and
Vermont, already have sexual orientation, much as we have defined it, included in their statewide anti-discrimination legislation.
The consequences of this bill adding sexual orientation will be no greater than those we saw when we added religion or national origin to our anti-discrimination law. Religion and national origin are as hard to interpret as sexual orientation. In fact, I would contend that they are even harder. If pressed, I can quite often guess the sexual orientation of a man or woman I meet, but I can rarely, if ever guess their religion or their country of origin with any accuracy. It makes life simpler not to even try.
I think it is telling that in our society there is such a thing as Gay-dar, but there is no God-dar, or Origin-dar.The column continues:
We've called our campaign "Let The Voters Decide."
In recent weeks, supporters of HB 2661 have said that having a public vote on this topic is inappropriate. Their view is not consistent. In 1997, these same folks pushed this same policy as an initiative, I-677. Back then, they felt it perfectly appropriate for the voters to have the final say. They raised and spent big bucks trying to persuade voters to support I-677. But the voters overwhelmingly rejected it. So their recent objections to a public vote only materialized after they learned that the voters were against their agenda. Hypocrisy is not unique in politics but it should be recognized and identified.
Some have questioned our motivation on this issue. Again, we've been consistent. The first initiative I ever co-sponsored was Initiative 200, the "Washington Civil Rights Initiative," overwhelmingly approved by voters in 1998. It made it illegal for state and local governments to grant preferential treatment to anyone based on what group they belonged to.
Mr. Eyman makes a fair point here. The campaign around I-677 was a direct appeal to Washington State voters to add sexual orientation to existing anti-discrimination law and it did fail. However, I don’t know, as Mr. Eyman seems to with such comfortable certainty, that the people who rolled and lost on I-667 then are the same people saying that a “public vote on this topic is inappropriate” today. It was, after all, nine years ago.
I had no engagement in the I-677 campaign, but I have long believed that any system where a popular majority decides on minority rights is inherently flawed and naturally predisposed to oppressing minorities. There is a good argument to be made that the modern civil rights movement was born to counter the trend that Mr. Eyman is now evangelizing with such self-interested zeal.
Mr. Eyman’s true motivation in any initiative campaign is the financial reward he and his associates gain, and certainly not the fatally distorted parody of justice he proposes as his consistent goal. He continues:
HB 2661 violates this principle. I-200 said no to government-imposed preferences based on race, sex, color, ethnicity or national origin. "Let The Voters Decide" gives voters the opportunity to reaffirm their support for this no-preference policy and add another group to the list that shouldn't get preferential treatment by government.
If we're successful at getting enough signatures to put this policy before the voters this fall, we'll debate whether this policy is counterproductive.
To me, it is. Government-imposed preferential treatment will only enhance suspicion and conflict between our citizens exactly as described earlier by Rep. Cox. When the classroom teacher treats Johnny special, the other kids end up not liking Johnny. When government gets involved, it usually makes things worse. This is especially true when it comes to social issues. Better for the government to stay out of it.
HB2661 doesn’t contain any preferential treatment for any of the classes it includes. And if, as Mr. Eyman maintains, I-200 really was the voters saying no to “preferential treatment” on the grounds of race, sex, color, ethnicity or national origin, then
why hasn’t he followed through and proposed an initiative to roll back the pre-existing anti-discrimination protections for race, sex, color, or national origin? Why is Mr. Eyman only focusing on rolling back the newly added anti-discrimination protection for sexual orientation? Sauce for the goose, Mr. Eyman, is also sauce for the gander.
The answer is because he can, and no one will call him on his own hypocrisy. He believes, as Professor Hill does, that the public will not only let him, but pay him handsomely for the privilege.
Mr. Eyman raises the bewildering example of a teacher who treats Johnny as “special” resulting in the other kids “not liking” him. He maintains that government involvement makes things worse. If we are still talking about HB2661, and it is hard to be sure with Mr. Eyman’s singular non-sequitur style, it’s clear that HB2661 has no relevance to his example at all since it only covers
“discrimination in employment, in credit and insurance, transactions, in places of public resort, accommodation, or amusement, and in real property transactions...” The column goes on:
Besides, our citizenry doesn't support same-sex marriage, something the courts will impose if HB 2661 stands. It's exactly what's happening in other states, most recently Maryland and Massachusetts.
For this reason and others explained above, this bill is a Pandora's box that Olympia opened but voters should have the chance to close.
This is a big decision and both sides deserve the chance to express their opinion without intimidation or fear of retaliation. Name-calling shows a lack of confidence in your position. I have faith in the voters. Each of us will decide what we
think is best for our state, using our own values, background and beliefs as our
guide. And when the dust settles, the voters will decide.
Another non-sequitur. The anti-discrimination law that Mr. Eyman speaks about in this column has absolutely no connection to the issue of same-sex marriage.
Despite this fact, there are amendments in HB2661 that make it abundantly clear that passage of this bill in no way supports same-sex marriage or preferential quotas.
This for example:
“Inclusion of sexual orientation in this chapter does not create any precedent, basis, or right to same-sex marriage. This chapter shall not be construed to create any precedent, basis, or right to same-sex marriage."
EFFECT: States that the inclusion of sexual orientation among the bases for prohibiting discrimination under the Law Against Discrimination does not create any precedent, basis, or right to same-sex marriage, and that the law must not be construed as creating any precedent, basis, or right to same-sex marriage.
And this:
"Inclusion of sexual orientation in this chapter shall not be construed to modify or supersede state law relating to marriage."
EFFECT: Strikes the amendment and instead adds a statement to the Law Against Discrimination that inclusion of sexual orientation shall not be construed to modify or supersede state law relating to marriage.
And these:
“This chapter shall not be construed to endorse any specific belief, practice, behavior, or orientation. Inclusion of sexual orientation in this chapter shall not be construed to modify or supersede state law relating to marriage.”
“PROVIDED, that this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.”
His other claim, that the courts will impose same-sex marriage on us if HB2661 stands, is a complete fiction. It is true that the Washington State Supreme court is due to rule in the near future on whether the state’s current Defense of Marriage Act is constitutional, but that ruling will happen regardless of whether HB2661 stands or falls.
Mr. Eyman can’t pass an opportunity to conflate the two issues and mislead voters into thinking that signing his initiatives opposing HB2661 will somehow prevent same-sex marriage.
It won’t.
The most amusing allusion in the column is to HB2661 as a
Pandora’s Box that the politicians have opened and only the voters can close. If Mr. Eyman is trying to convince us that HB2661 will release “all the misfortunes of mankind like
plague,
sorrow, poverty, and crime”, he has no compelling legal grounds for making the case.
There’s an interesting coda to the story of Pandora that Mr. Eyman evidently doesn’t know. After Pandora had opened the box, she closed it again very quickly. She closed it just in time to keep one thing still inside. Hope. From
Wikipedia:
“The world remained extremely bleak for an unspecified interval, until Pandora "chanced" to revisit the box again, at which point Hope fluttered out. Thus, mankind always has hope in times of evil, but Hope has a great deal of catching up to do.”
I think the initiative process itself is closer in spirit to the box in the story of
Pandora’s Box. There have been so many unfortunate and unintended consequences from initiatives over the years.
I’m waiting for the box to open one last time, and for hope to escape and save us all.
