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9 Hamline J. Pub. L. & Pol'y 237 (1988-1989)
The Case for Gay Rights

handle is hein.journals/hplp9 and id is 243 raw text is: THE CASE FOR GAY RIGHTS
Matthew A. Coles*
I. INTRODUCTION: THE BASIC ARGUMENT.
The United States should have laws protecting the civil rights of lesbi-
ans and gay men because the social structures which are supposed to make
sure that people are treated fairly do not protect gay people.
For the most part, America relies on social norms, not law, to ensure
that people are treated fairly. The idea is not simply that people should be
committed to fairness (although that is an important part of the theory),
but that those people who are consistently unfair will fail. Business people,
for example, who base employment decisions on something other than
merit will suffer inasmuch as they will be less efficient than others. A simi-
lar fate will befall landlords who are arbitrary about tenants and business
people who are arbitrary about customers. America, generally, does not
have laws requiring good cause in employment, housing, etc. because
such laws are thought to be unnecessary.
This may or may not be a wise theory; it may or may not be a relatively
accurate description of how American society actually works. Sometimes at
least, this model of society is neither wise in theory nor accurate in reality.
Sometimes, groups of people suffer for reasons that have nothing to do
with merit or ability, and the system does not correct that.
The purpose of civil rights law' is to step in where society fails. Civil
rights laws are appropriate whenever society consistently disadvantages a
group of people for reasons that are not related to ability. Since gay peo-
ple have been, and continue to be, the victims of irrational discrimination,
they ought to be protected by civil rights law.
II. THE PURPOSE OF CIVIL RIGHTS LAw.
The basic premise of the American system is that a person's achieve-
ment ought to depend on her or his ability and willingness to work. What a
person gets ought to depend on individual merit. Although this idea is
central to American law, it is an old idea. It animated the framers of the
* B.A., Yale University, 1973; J.D., University of California, Hastings College of Law,
1977. Mr. Coles is a staffattorney for the American Civil Liberties Union of Northern Califor-
nia and an Adjunct Assistant Professor at the University of California, Hastings College of
Law.
1. This essay uses the general term civil rights law to include constitutional law, legis-
lative law, and court made common law and case law. Although the justification for the adop-
tion of a particular civil rights law or decision may differ in some details depending on the
institution involved and the type of law sought, the general justification for civil rights law is
the same for all.

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