What's so Special About Special Rights?
Denver University Law Review, Vol. 75, Pp. 1265-1303, 1998
Posted: 17 Jun 1999
Abstract
This article examines the debate over special rights between gay rights opponents and proponents by focusing on arguments made on behalf and against the Employment Nondiscrimination Act (ENDA), a federal bill prohibiting discrimination based on sexual orientation. Through this exploration, the article makes three arguments. First, opponents and proponents of gay rights use the term special rights in very different senses. As a result, ENDA advocates, by arguing that ENDA does not grant homosexuals special rights, are nonresponsive to the special rights critics. Second, not only do ENDA advocates fail to address their opponent's concerns, they, unwittingly no doubt, buy into a very conservative view about civil rights. That is, they suggest that economic efficiency should guide lawmaking, and that affirmative action or other "preferences" are negative. Third, ENDA advocates perpetuate and even accentuate the assumption made by critics that special rights are bad. The article questions this assumption by looking at examples in which special rights are seen as good, or at least benign. In doing so, it calls for a gay rights advocacy for special rights, because -- in Oliver Wendell Holmes' sense of the term "special rights" -- the facts call for them. The article concludes by urging the development of and reliance on a thick description of special facts to support a claim for special rights.
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