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OP-ED: Diversity and Billings’ Nondiscrimination Ordinance

The Billings City Council will meet next Monday, July 28, to continue its venture into the largely uncharted territory of nondiscrimination ordinances (NDOs).   The discussion of and public comment on the third draft of the Billings NDO promises to be as fascinating as the work done over the last several months.

It also seems clear the City Council will continue to fan the flames of division in Billings by pressing on with the NDO rather than putting the matter to a public vote, as was suggested last month.


Resident Michael Mattson giving public comment at the Billings City Council meeting on the Nondiscrimination Ordinance, June 2, 2014.

As was noted by this writer during the City Council meeting on June 2:

The rule of law requires precision: while the ordinances passed in other cities in Montana carefully define the potential victims they intend to protect, the disturbing fact remains that penalties, punishments, and prosecution can be brought against citizens based solely on someone’s perception — not based upon carefully or clearly establishable fact, not based on any standards or rules of evidence, but solely upon the opinion of one individual about the motivation of another.

The most recent version of the Billings’ NDO seems to have made an attempt at dodging that bullet.

While the language of the Billings NDO does not explicitly use the term “perception”,  the current iteration defines discrimination (and variants) as “any act, policy, or practice that has the effect of unfavorably subjecting any person to different of separate treatment due to their sexual orientation… or on the belief that a person has a particular sexual orientation…even if that belief is incorrect.”

There can be little doubt that stupid people exist — a fact readily verifiable on nearly every election day. Likewise, it would come as no great surprise to discover an American who can’t discern the difference between a bill of rights and Bill, who left.

The third draft of the Billings NDO seems to place substantial faith in the above axioms.  Pursuing enforcement must ultimately rely on only a few options.  Either someone commits an act of such blatant and obvious discrimination as to have clearly indicated their motive, or they just blurt that motive out for some reason to whatever witnesses might be loitering around.

Perhaps such things do occur.  But what is more troubling about the language of the current draft NDO is the fact that the subjectivity of perceptions are not removed.  While the language has changed, it has only been made more subtle.  The paragraph above necessarily gives a supposed “belief” about someone’s sexual orientation the same standing as an overt act; both of which are legally actionable based on an alleged victim’s assertion that being treated differently was unfavorable.

This remains a recipe for disaster.

As noted by Gallup last May, there is a profound division in American culture regarding issues of homosexuality.

Commentary on the poll is informative:

Though the plurality of Americans believe that being gay is present a birth, there continues to be large differences in perspectives across demographic, religious, and political dimensions. Those with college educations, whites, females, liberals, Democrats, high-income earners, and those who seldom or never attend church are the most likely to believe that being gay or lesbian is something people are born with….

The scientific community does not agree on one unified viewpoint regarding the issue of a person’s sexual orientation. According to the American Psychological Association, “there is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation.”

Because the matter is so intensely personal, that division quickly and easily embroils us in conflict; and conflict always exists for one primary reason: diversity.  We have conflicts, whether at our work or in our home or in a city council meeting, because we are not all identical.  One need not be an idealist to grasp that conflict can result in growth if it is handled well.  But injecting the threat of governmental action at any level deepens the divide and instigates the conflict rather than ameliorating it.

That’s not to say the conflicts should be ignored or avoided; only that government, even at the level of a city council, is not an effective means to resolving this conflict.  As Frederic Bastiat wrote in The Law:

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all. We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

That there are serious divisions in our community and our culture as a whole cannot be denied; but it doesn’t mean government has, or is, the answer to the conflicts prompted by our differences.

I like diversity.  One of the very best kinds of diversity is irony, the ying-yang mash-up of words and ideas.  In addition to the evidentiary hurdles the NDO creates for itself, it is profoundly ironic that the issue itself comes down to discerning differences among people.  The NDO obligates us all recognize and acknowledge diversity in sexual orientation, or there is no class to which the ordinance applies.

But then we have to pretend that very diversity no longer exists; we can’t act on it unless it is in a favorable way, speak about it unless it is favorable speech, or believe anything about it — unless it is favorable, and unless our beliefs aren’t actual beliefs, because actual beliefs result in action.

Now you see it, now you don’t.

Make believe.  Magical thinking.

Or, irony:

-the expression of one’s meaning by using language that normally signifies the opposite, typically for humorous or emphatic effect.

Emphatic? Yes.  Humorous, not so much.

-a state of affairs or an event that seems deliberately contrary to what one expects and is often amusing as a result.

Often, yes.  But not always.  Sometimes it’s just sad.

The NDO isn’t likely to be on a ballot anytime soon, even though a ballot issue would  ultimately be more representative of the will of the people of Billings, and no matter what the outcome is next month, we will be able to thank the City Council for their demonstration of the final irony:

– a literary technique, originally used in Greek tragedy, by which the full significance of a character’s words or actions are clear to the audience or reader although unknown to the character.

One might well wish this were a more pleasant fiction.

Michael Mattson

Michael Mattson is State Editor for Watchdog Wire - Montana. He is founder and Executive Editor of The Hellroaring Review, an online literary journal that focuses on very short ("flash") fiction, as well as The Hellroaring Report, a news aggregator focused on the Mountain West and Northern Plains. Contact Michael at Montana@WatchdogWire.com. Follow him on Twitter: @Hell_Roaring

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