Sept. 13, 2019
News broke today that in 1993, Vice President Mike Pence—then with the Indiana Policy Review Foundation, a conservative think tank—opposed an effort to add “sexual orientation” as a protected category in a Lafayette, Indiana human relations ordinance.
The biggest surprise here may be that anyone found this discovery—in an old issue of the Lafayette Journal and Courier—to be the least bit newsworthy.
After all, even in 2019, after decades of LGBT (lesbian, gay, bisexual, transgender) activism, most of the country—28 of the 50 states, plus the U.S. Congress—has rejected the idea that “sexual orientation” should be treated as the equivalent of race under non-discrimination laws involving employment and public accommodations.
Pence said in 1993, “It represents a very bad move in public policy”—and 26 years later, most of the country agrees.
Pence added, “It opens up from a legal standpoint . . . a Pandora’s Box of legal rights and legal difficulties once you identify homosexuals as a discrete and insular minority.” The use of the phrase “discrete and insular minority”—drawn from a 1938 Supreme Court decision—showed a sophisticated understanding of civil rights law on the part of Pence, who is himself a lawyer.
Can anyone really deny that the LGBT rights movement has led to “legal rights” (such as same-sex civil “marriage”) and “legal difficulties” (such as lawsuits against wedding vendors to compel speech the vendors disagree with) that might not have been obvious in 1993? This was a prescient, and entirely accurate, forecast.
Pence noted—again, correctly—a key factor historically in whether certain minority groups have been protected by “strict scrutiny” from the courts or by legislation. “Up to this point,” Pence told the paper, “our legal tradition has drawn a line over those things. I do not choose whether I am a black American . . .”
In other words, the characteristics which have merited the special protection of non-discrimination laws have usually been those which are inborn, involuntary, immutable, or innocuous. Those criteria apply to race and sex in a way they do not to “sexual orientation.” In the article, a Purdue political science professor made the same point—“that equating the path of sexual orientation ordinances with the civil rights movement, or to a lesser extent women’s rights, is misleading.”
A few of the quotes attributed to Pence could have used greater elaboration. For example, he is quoted as saying that “homosexuality at a very minimum is a choice by the individual.” LGBT activists insist, with reason, that most people do not choose to experience same-sex attractions. (This does not mean, however, that such attractions are innate. A recent study of the connections between genetics and homosexual conduct has disproved the claim, in an article to which CNN linked, that “homosexuality is largely determined by heredity.”)
Pence’s remarks seem to reflect what I have elsewhere referred to as the “homosexual conduct paradigm,” within which the word “homosexuality” is primarily a reference to homosexual conduct. Such conduct, along with self-identifying as gay or lesbian, clearly is a choice.
Pence is also quoted as saying, “Once you identify homosexuals as a . . . minority, then by definition they would need to be afforded constitutional protection.” Of course, homosexuals have, and have always had, the same rights under the U.S. Constitution that every other American has—rights such as freedom of speech, freedom of the press, and freedom of religion. I’m sure that Vice President Pence would agree.
The constitutional question, however, is whether laws perceived as having some impact based on “sexual orientation” must be subjected to “heightened scrutiny”—rather than just a “rational basis” test—when analyzed under the equal protection clause of the 14th Amendment. Pence was right in forecasting that enshrining sexual orientation as a protected category in statutory law would have an impact on how courts would view it from a constitutional perspective—and might distort that view in cases like the one ordering a redefinition of marriage.
Pence also told the paper that the effort in Lafayette was part of “a grassroots-generated movement for recognition of homosexual rights . . .” This is no conspiracy theory—it was a simple and accurate statement that the push for such legislation was part of a movement active at both the national and local levels. Pence said, “I suspect [homosexual rights] will be one of the biggest issues of the ‘90’s”—which was true, and has continued to be true in the decades since.
Most of the arguments Pence offered in 1993 are the same arguments that we at Family Research Council and other social conservatives make today in opposing radical LGBT rights legislation like the proposed federal Equality Act.
What would be news is if Mike Pence had ever taken any other position.