Monday, November 16, 2009

SLC Non-Discrimination Ordinance

Recently there have been a number of news stories (Deseret News, AZCentral) relating to the recent passing of a set of non-discrimination ordinances (pdf) regarding discrimination against people in Salt Lake City because of sexual orientation or gender identity (SLC City Code 10.04 and 10.05). What was also notable about the incident was that The Church of Jesus Christ of Latter-day Saints also expressed their support for the city ordinances because, "they are fair and reasonable and do not do violence to the institution of marriage."

So what is it about how these city ordinances are written that would bring official recognition and acceptance from the Church? Also after reading several comments posted after the news stories there were a number of concerns raised by people concerned with the implications of the new city ordinance. So what were the main concerns and how do these city ordinance address them?

Effectively these ordinances make it illegal to discriminate against someone in terms of employment and housing based on sexual orientation or gender identity. It establishes a procedure for filing complaints and resolving disputes that may arise due to allegations of discrimination. These city ordinances are in addition to the previous ordinances regarding discrimination based on race, gender, religion or country of origin.

In relation to these ordinances some of the main concerns that people voiced in the online forums were:

1. If I have a small basement apartment that I am renting out, will this force me to rent it out to a homosexual couple?

2. Will this force religious book stores, such as Deseret Book, to hire cross dressers?

3. If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination?

4. If I am single and living in an apartment with other single people, does this mean that a gay couple can move in to my apartment and I (and my landlord) can't do anything about it? As in, we can't object?

So how do these two city ordinances address these concerns, if at all?

First let us look at the exceptions provided. Both religious organizations and "expressive organizations" (such as the Boy Scouts of America) are expressly exempt from these city ordinances. While that solves some of the potential problems it does not address any of the above concerns. It turns out that the first three objections are addressed and the fourth may be addressed depending on how certain language is interpreted.

1. In this objection the concern is that under this ordinance a family living in their own home will be forced to rent out a basement apartment to a homosexual couple. This is expressly addressed in the exceptions. Effectively the ordinance exempts small privately owned apartments such as basement apartments because in order for the ordinance to apply you must,

"own an interest in or title to four or more single-family dwellings held for lease or sale at one time, and are located inside the City....[sell] two or more single-family dwellings inside the City, and in which the owner did not reside in the dwelling within the 24-month period preceding the sale or rental of the dwelling....use the service or facilities of any real estate broker, agent, or salesperson, or of any person in the business of selling or renting dwellings."

It also further specifies that owners are exempt if, "The rental of a dwelling that is occupied or intended to be occupied by no more than four families living independently of each other, when the owner actually maintains and occupies part of the dwelling as a residence."

That takes care of the first objection.

2. Will this force religious book stores, such as Deseret Book, to hire cross dressers? In terms of hiring practices the ordinance stipulates that employees must adhere to "reasonable rules and regulations and other job related qualifications required by an employer." This would include a dress code (no pun intended). There are also other provisions to accommodate for positions where "sexual orientation or gender identity are bona fide occupational qualifications for employment."

3. If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination? The concern here is that this city ordinance will create a special protected class of citizens that will be able and willing to sue at the drop of a hat, and that the major employers and landlords of the city will be open to all kinds of lawsuits for discrimination. This concern is addressed in its own section.

"This chapter does not create a private cause of action, nor does it create any right or remedy that is the same or substantially equivalent to the remedies provided under federal or state law. This chapter does not create any special rights or privileges which would not be available to all of the City’s citizens because every person has a sexual orientation and a gender identity."

This section is particularly interesting in that it prohibits a "private cause of action". This phrase is a technical legal phrase with a specific meaning, and with interpretations related to several supreme court cases. From Wikipedia, "Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law. Implied causes of action arising under the Constitution of the United States are treated differently than those based on statutes."

In other words, if there were a private or implied cause of action then someone could bring a lawsuit against someone else even if there is no law expressly allowing it, i.e. there is no law expressly prohibiting the actions of the person being sued. What this means for the SLC ordinance is that someone cannot bring a lawsuit against someone else under violations of this city ordinance. The only way legal action can be brought under this city ordinance is through the complaint and arbitration provisions provided under the ordinance.

So in answer to the question, If I fail to hire someone and it then turns out that they were homosexual, can they sue me for discrimination? No. They can file a complaint which will then be investigated, but they cannot sue. Also this section in the city ordinance makes another interesting point. Even though it does not explicitly say it it implies that sexual orientation and gender identity is not a civil right, nor is it open to the same protections guaranteed to any other civil right protected by the Constitution or by law.

4. The last objection is not expressly covered in the city ordinance but depending on how a certain sentence is interpreted it may be. That sentence (in context) says,

"This chapter does not apply to a temporary or permanent residence facility operated by a nonprofit organization; a charitable organization; or a person in conjunction with a religious organization, association, or society, including any dormitory operated by a public or private educational institution, if the discrimination is based on sexual orientation or gender identity for reasons of personal modesty or privacy or in the furtherance of a religious organization’s sincerely held religious beliefs."

The key phrase here is "for reasons of personal modesty or privacy". While in context this may be a rather qualified statement, it may apply in most situations of concern where someone, or even a group of people, feel that they have a reasonable expectation of modesty and privacy. Thus in cases of college dorms and other comparable housing units, under this ordinance the tenants may insist on a having a reasonable expectation of modesty and privacy. In other words, in an apartment that can allow six single students, four of the residents can object to a homosexual couple moving in and the landlord can agree and not allow the gay couple to keep their contracts. As I said, this particular situation may not be covered by the city ordinance depending on how the language is interpreted. Still any major concerns may be covered under the section that explicitly prohibits the creation of a special protected class of citizens. As the code states, "This chapter does not create any special rights or privileges which would not be available to all of the City’s citizens". In other words, they will be treated like everyone else.

So while the non-discrimination ordinance allows for the basic, "common sense" rights associated with human dignity, it does not create a special, privileged class of people that have access to more rights, protections or remedies than others. It guarantees that homosexuals will be treated with fairness and equality, just like everyone else, while at the same time preserving the rights to religion and expression that all other people have. In other words, this city ordinance does not establish the rights and freedoms of one group of people by infringing on the rights and freedoms of another group of people.

Friday, November 13, 2009

On How We Know: The Sixth Sense

This is a continuation of my series On How We Know. The introduction can be found here, and a full listing of articles can be found here.

In considering the knowledge we gain from sense experience the question arises, where do feelings of the Spirit or Holy Ghost fit into this. As we learn from one passage in the Doctrine and Covenants the feelings or knowledge imparted by the Spirit can be described as a "burning in our bosom". Feeling the Spirit can also be described as enlightening our understanding, or simply enlightening. So the question that we might consider is how feeling the Spirit or the influence of the Spirit relates to our other senses.

Some people choose to define it as a sixth sense that we have. In other words, when we feel the Spirit we feel it through our "spiritual sense organ" much in the same way we sense anything else through our other five senses. Without elaborating I will say that this always seemed a little ridiculous to me. While it may be useful to talk about the Spirit in this way so that those who do not understand can begin to understand, I think that it is not ultimately useful or even instructive to talk about feeling the Spirit in terms of having a sixth sense. So what is it then?

Better yet is the approach expressed by Joseph Smith as explained by Truman G. Madsen,

"On the senses, a colleague at an eastern university said to me one day, "Yes, I've heard you Mormons have a sixth sense. You do. It is the sense that enables you to swallow this nonsense called Mormonism." Even if you conclude with certain scientific naturalists that anything that is nonsensory is nonsense, that is an endorsement, in a measure, of your heritage. Said Erastus Snow, referring to the Prophet,

"Joseph taught that the Spirit of the Lord underlies all our natural senses, that is seeing, hearing, smelling, tasting, touching. The Spirit communicates with the spirit of man and enlivens all the other senses.
[BYU Special Collections, MSS. 44, Folder 5]"

Thus the sensations of the spirit and the feeling we have from the Spirit are the same things that connect all our normal senses to our spirit. It is the stuff of spirit, and when the Holy Ghost speaks to us it is directly to our own spirit, that which is the repository of knowledge and awareness. Thus the sensations of the Spirit are the sensations of sense itself.

On How We Know: "Why do you doubt your senses?"

This is a continuation of my series On How We Know. The introduction can be found here, and a full listing of articles can be found here.

In the book A Christmas Carol by Charles Dickens, the ghost of Jacob Marley confronts the character Ebenezer Scrooge, and after introducing himself the ghost and Scrooge have a rather interesting conversation. I will include the first few lines here:

"You don't believe in me," observed the Ghost.
"I don't," said Scrooge.
"What evidence would you have of my reality beyond that of your own senses?"
"I don't know," said Scrooge.
"Why do you doubt your senses?"
"Because," said Scrooge, "a little thing affects them. A slight disorder of the stomach makes them cheats. You may be an undigested bit of beef, a blot of mustard, a crumb of cheese, a fragment of an underdone potato. There's more of gravy than of grave about you, whatever you are!"

In this exchange the ghost of Jacob Marley asks a rather interesting question, "What evidence would you have of my reality beyond that of your own senses?" Essentially Jacob Marley is asking, "Is there any other possible way for you, or anyone else, to gain knowledge of reality than through your senses?" and the natural conclusion to this thought is that if there is no other way to gain knowledge of reality then, "Why do you doubt your senses?"

Scrooge's response is anything but unique. It is the response of sceptics and philosophers from many ages of Western Philosophy. Perhaps the one who expressed it better than anyone else, and is best known for it, is Rene Descartes. His particular approach even has its own name, the method of doubt. In applying the method of doubt, Descartes had a specific goal in mind, to find the foundations of reality, but unintentionally his method of doubt started a tradition that has continued and influenced us to this day. It introduced into not just Western Philosophy, but all of Western Culture a fundamental distrust of our senses. I have heard Descartes', and Scrooge's, arguments repeated over and over by college professors, by high school teachers and even by elementary school children. Even though most people live and act as if their senses are a good indication of what is real, the same people will immediate express doubt in their own senses, and especially those of others, when what they sense does not agree with what they already "know". There is always some other explanation that explains what someone saw or otherwise sensed. These doubts are given particular force because of the tradition we have of doubting or senses.

So let us consider this doubt, do we have any reason at all to doubt our senses? Essentially the argument of Descartes, and Scrooge, is that there exist well known instances where our senses cannot be relied upon. The classic example is dreams. We can "sense" things in our dreams that are not really there. This is not confined to our dreams but occasionally, as Scrooge points out, our senses can be cheated by other things, such as indigestion or other substances. So the question is, "Where do we draw the line?" How do we determine which sensations are real and which are false? The answer of Descartes was essentially, "Because I don't know where the line is I am going to assume that there is no line and that I can't trust any of the sensations I have." While Descartes ultimately acknowledges that this approach is insane, the damage was done and he had introduced the idea that because there is some doubt as to where the dividing line is between two things, in this case sensations corresponding to reality and those that do not, then we cannot assume that any of our sensations correspond to reality and we must doubt everything.

Effectively what Descartes has done is to confuse the ocean for a continent because he was standing on the beach and did not know where "dry land" ended and the water began. The method used by Descartes and the argument of Scrooge is like someone standing on a beach and wondering where the land ends and where the water begins. After puzzling over it for a while this person concludes that there is no such thing as land because they cannot clearly discern the boundary between a continent and an ocean. They then head inland away from the ocean and begin to talk to people and tell them that they are not standing on dry land but that they are actually in the middle of the ocean. In their defence they point to the presence of lakes, rivers and even glasses of water to prove that we do not live on a continent but that we live in the ocean. If someone actually attempted this and spoke like this then they would quickly be picked up by the authorities and taken to a "safe place" with padded walls. But in the case of philosophers instead of being ignored as insane they are called great and have their works and ideas spread around like manure.

Just because the boundary between an ocean and a continent is not well defined to someone standing on the beach does not mean that there is not a distinct, well definable and immediately recognizable difference between the two. Doubting the existence of a continent because the waves are washing your feet is an act of severe intellectual dishonesty. In the same way, doubting all our senses because a few of them may not actually correspond to anything in reality is also an act of severe intellectual dishonesty.

Continuing with this analogy we note that on continents there are lake and rivers which some will use to cast doubt on our assertion. These I will liken to physical injury, drugs and other mind altering substances. The fact that I can mention them in the context of "mind altering" indicates that there is a distinct, well definable and immediately recognizable difference between normal sensations and those arising from drugs or physical conditions. Again there is no reason to doubt the veracity of all sensations, or the existence of a continent, just because you are dabbling your feet in a river or a lake.

Related to this is the misguided approach of trying to "discover" something about reality by deliberately partaking in mind altering drugs. This would be akin to stating a desire to understand the rocks and dirt of a continent and then promptly going for a swim and spending your time staring at a fish.

So how do know to distinguish between between sensations that give us knowledge of reality and those that do not? The answer to that question is inextricably bound up with the answer to the question "How do we gain knowledge?" which is the purpose of these essays. So we know the limit or boundary by applying the selfsame modes of knowing that lead us into all knowledge. As for giving a more exact answer I would ask, "How do we recognize the boundary between land and water?" Understand that and you can learn to recognize the boundaries between sensations that give us knowledge of reality and those that do not.