Lessig Blog Archives

Here’s a proposal for making progress toward equality in the military that is again an example of both ambiguation and informational incrementalism. It comes from Chapter 6 of Straightforward.

Ian and I support the repeal of “Don’t Ask, Don’t Tell.” But is there anything that can be done as a precursor to changing this law?

Imagine that every soldier upon entering the military was asked a simple question.

Would you prefer to serve in a command without any gay personnel?

Soldiers would know that if they answer “No” they would be assigned to an “inclusive” command, and that if they answer “Yes” they would be assigned to an “exclusive” command.

Asking this question does not violate “Don’t Ask, Don’t Tell” because it does not ask a soldier about his or her own sexual orientation. But it nonetheless is likely to promote a kind of voluntary integration in the inclusive command. In an essay just published in the Michigan law review, we argue that:

The benefits of the inclusive units would be threefold: amelioration (of current discrimination), demonstration (that DADT is not necessary to preserve unit cohesion), and realignment of political allies and enemies (creating a common cause for pro-gay legislators on the left and pro-defense legislators on the right). The proposal is dynamic, not static. The hope is that inclusive commands would so effectively demonstrate the benefits of integration that, over time,
increasing numbers of service members would opt for integrated nits. From there, the step to universal, mandatory integration of sexual minorities into the armed forces would be smaller and more easily taken.

You can learn more about this proposal in an essay we published in the Michigan law review and see comments to an earlier post that Ian made to Balkinization.

Name a type of intellectual property that the owner can’t practice?

If you own a patent, you can practice your own invention.
If you own copyrighted material, you can certainly publish and sell it.
If you own a trademark, you can certainly put it on your products.

In contrast, I think the certification mark is the only type of intellectual property that owners can’t use themselves. Owners are are only allowed to license the intellectual property to others

The owner of the Good Housekeeping Seal can’t put it on the its own products (such as the Good Housekeeping magazine). The idea is that it is too severe a conflict of interest to certify your own goods or services as complying with the requirements of the certification mark.

So what? Well sadly this means that Jennifer Brown and I are the only employers in the world that can’t use the Fair Employment license as a means of committing ourselves to non-discrimination.

And it’s interesting that the Fair Employment mark can potentially protect employees in other countries. That’s right. It’s not just away for any U.S. business to opt into ENDA, but the fair employment mark gives businesses in any other country an opportunity to make a legally binding commitment not to discriminate. Just as Jennifer and I can enter into a contract with an Italian business to buy flowers, we can enter into a contract with the same firm whereby we grant them a license to use the certification mark and they make a contractual promise not to discriminate.

So let us be clear. Non-U.S. readers of this blog, we welcome you to license the mark as well. Ask your boss if she is willing to promise not to discriminate. Of course, it might be unduly burdensome for Italian employees to sue in U.S. courts but some non-U.S. jurisdiction would even give local employees (third-party beneficiary) rights to sue at home based on business’s contract with us.

This imperialistic potential for the Fair Employment mark also suggests a dimension on which the mark is more powerful than a federal statute. The mark would allow non-US business to provide non-discrimination coverage for their workers. If ENDA was passed as federal legislation, it would mandate domestic compliance, but in contrast it wouldn’t even give foreign employers the option of having their employees coverage.

Maybe Congress should rethink the jurisdictional scope of its laws. Like the fair employment mark, maybe Congress should allow foreign businesses and individual to opt into certain U.S. regimes if they want to. If a non-US firm wants to be covered by Title VII’s prohibition of sex and race discrimination, maybe Congress should given them an option to opt into a contract with the United States. There might even be contexts where it would be in our interest for Congress to even allow opt-in enforcement. If a non-US firm said it wanted to be bound by the NLRA or Title VII, maybe it wouldn’t be bad to empower the NLRB or EEOC to enforce the promise – analogous to the way that traditional certification mark owners certify compliance with their marks.

In his 1995 Chicago Law Review article, The Regulation of Social Meaning, Larry Lessig discussed some of the rhetorical devices that can change a society’s shared understanding of the meaning conveyed by a given word or action. One of these, Lessig explained, was “ambiguation,” which gives “a particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first.” In Straightforward: How to Mobilize Heterosexual Support for Gay Rights, we argue that when heterosexuals tolerate ambiguity about their own sexual orientation, they use ambiguation to promote equality for LGBT people.

In 1959, a white man named John Howard Griffin took extreme measures to adopt the perspective of African-Americans: he shaved his head, chemically altered the color of his skin, and traveled the South for two months in the guise of an itinerate black man. He recounted his experiences of racial prejudice and hatred in Black Like Me, which became a national bestseller and opened the eyes of many white Americans to the evils of Jim Crow. By literally walking a mile in his brothers’ shoes, Griffin was able to gain not only a greater understanding of racism, but a greater sense of solidarity with Black Americans.
Today, heterosexual Americans have similar — if far less dramatic — opportunities to adopt the perspective of their brothers and sisters who are gay, lesbian, and bisexual. There is no skin dye, no bodily marker, to allow a heterosexual to follow Griffin’s model, but we should consider the potential in words or well-chosen silence to allow straight Americans even momentarily to have “Gay Like Me” experiences.
Ambiguation has long been deployed by gay, lesbian and bisexual people when they are closeted. But coming out can be ambiguating, too, because people who come out are bound to defy the preconceptions of their audience — by being individuals, not categories. The process of coming out can thus ambiguate — in the core sense of producing multiple and more varied meanings.
If gay peoples’ “coming out” is ambiguating, so too might be heterosexual peoples’ “going in.” This “going in” for heterosexual people could include a variety of moves: permitting confusion about whether or not they are gay; foregoing opportunities to identify opposite sex partners as spouses; making affirmative statements that align them with gay, lesbian, and bisexual people, and not qualifying those statements with disclosure of their own heterosexuality. And just as Griffin promoted civil rights for African-Americans by even temporarily assuming a black identity, so too heterosexuals can promote gay rights by tolerating greater ambiguity about sexual orientation.
To see how this might work, consider an example from Lessig’s Chicago article: the case of Denmark, King Christian, and the Star of David. Legend has it that when the Nazis invaded Denmark and demanded that Danish Jews wear the yellow Star of David on their clothing, King Christian X began to wear a Star of David on his own clothing. Soon all Danes were wearing the Star, confounding Nazi attempts to set the Jews apart from their countrymen. As Lessig explains:

“The Nazis required Jews to wear yellow stars. Wearing a star had then a particular meaning, in part constructed by disambiguating who were Jews and who were not, thereby facilitating the expression of racial hatred. Danes who opposed the racism of the Nazis then began to wear stars themselves. Their action then ambiguated the meaning of wearing a star. Now wearing a star meant either that the person was a Jew or that the person was a Dane supporting the Jews. Their action also tied the Danes to the Jews: now Danes were seen as supportive of the Jews.”

Can we find contemporary analogs to the Star of David, symbols of homosexuality that could be appropriated by non-gay people in liberating directions?
Gay rights advocacy groups have taken advantage of opportunities to use ambiguation. On National Coming Out Day, many people wear buttons or stickers expressing gay-affirmative messages. When, even for a day, people identifying with a broad range of sexual orientations all wear the gay-identified pink triangle, they literally replicate the Danes’ legendary appropriation of the Star of David. For that one day, at least, sexual orientation is ambiguated, because it is not clear: does a person wear a triangle to come out (on that day of all days of coming out) or to express support for and solidarity with LGBT people as they come out? And does it matter why we wear the triangle that day?
Or consider our friend (a lesbian we’ll call Sarah) in Madison, Wisconsin. Vandals broke a window and burned the rainbow flag Sarah had flown from her front porch. When Sarah talked with her neighbors about the attack on her home, one of her neighbors, who is heterosexual, suggested that all of the houses on the street should put up rainbow flags to show solidarity and support. The flags would say to the vandals, in effect: “Do you want to persecute gay people? Well, you’ll have to come after all of us, too.” Like the non-Jewish Danes who wore the Star of David, a street full of neighbors flying gay pride flags could protect and support through ambiguation.
Michael is another friend of ours whose sexuality became the stuff of conversations, all because of one simple action he took. In 1996, the Association of American Law Schools began to publish in its annual directory a list of law professors who self-identified as “Gay, Lesbian and Bisexual Community Law Teachers.” In 1998, Michael, then a junior professor at a Midwestern law school, first appeared on the list. The reactions were varied. Surprise: “I thought he had a girlfriend.” Political: “Maybe Michael placed himself on the list in an act of solidarity.” Postmodern: “Michael wants to subvert sexual orientation categories, which are artificial and oppressive.” Some of these conversations missed the point; others were helpful as they caused people to focus on the purpose of the list and the criteria for legitimate membership in the group it purported to represent.
We may never know Michael’s motivations for joining this list (Michael has not responded to our efforts to discuss the list and his appearance on it — such conversations would, after all, be disambiguating; we thus obscure his identity and offer this analysis only tentatively, and decidedly not with the intent to judge him negatively). If Michael is indeed gay or bisexual, the story may be much simpler than all the gossip and analysis would suggest. Suppose for a moment, though, that Michael is heterosexual. Suppose that he joined the list not to come out but rather to change the social meaning of the AALS list of “Gay, Lesbian and Bisexual Community Law Teachers.” Suppose he joined the list as an act of solidarity (that is, to declare himself a member of the community which includes (but is not limited to) gay, lesbian, and bisexual law professors). Such a move would not only ambiguate the list, it would be a voluntarily self-ambiguating move.
More famously, Richard Gere has frequently refused even to acknowledge or discuss rumors that he is gay, except to say that “denying it would denigrate homosexuals.” By refusing to deny rumors of his homosexuality, Gere declines the invitation to place himself outside of a group of people he wants to validate and uphold.
But there are risks in ambiguation. It is important to be sensitive to the fact that this strategy will not be appropriate always and everywhere. At times, it might run counter to the goals of LGBT groups and individuals. To avoid these pitfalls, we suggest that allies ask themselves the following questions:

Am I trivializing sexual orientation?
Ambiguation can be viewed negatively if it appears to be “playing” with homosexuality in trivializing ways. Much is at stake, so ambiguate with care.

Do I predict that my audience will think less of me if they perceive me to be gay, lesbian, or bisexual?
Ambiguating may be most constructive if the audience is likely to hold a negative view of homosexuality. When heterosexual allies allow such an audience to place them in a disfavored category, they gain an opportunity to challenge some of the assumptions leading to that disfavor. It is also in these settings that they follow most closely in John Howard Griffin’s footsteps, as they gain a chance to empathize a bit with gay, lesbian and bisexual people.
If, on the other hand, the audience for the ambiguating act is gay friendly or gay neutral enough that it would make no difference to them, then ambiguation may be merely misappropriation of gay identity. Assume for the sake of argument that Michael, the Midwestern law professor, is heterosexual. Did his act of ambiguation succeed? The AALS list is not a Star of David. It carries no negative connotations — for the AALS that created it or for the now hundreds of people who appear on the list. Standing in solidarity with an oppressed group of people who are under attack is one thing; joining the group when it is being affirmed is another thing entirely.

Should sexual orientation be irrelevant to the discussion or transaction at issue?
Ambiguation creates noise or distortion in the signal of sexual orientation. If people’s “true” sexual orientation — that is, sexual orientation as lived and experienced — is appropriately part of the conversation or transaction, then “noise” created by ambiguation will be disruptive. If, on the other hand, signals about sexual orientation are being used to disempower or oppress gay, lesbian, or bisexual people, then interfering with those signals might be the moral thing to do.
We’ve already seen an example of each situation. To the extent Michael’s appearance on the AALS list inserts some noise into the signal, it might actually run counter to the goals of the list. In contrast, when Sarah’s house in Madison, Wisconsin was vandalized and her gay pride flag burned, flags on every other home might have helped to take sexual orientation out of the calculus of who would be safe, rendering sexual orientation irrelevant.

Can I entertain some internal ambiguity about my own sexual orientation?
All of us, straight and gay, have absorbed negative messages about homosexuality. If the process of ambiguating and the rationales for it help us to examine and perhaps resolve some of these negative messages, the process is constructive. Still, these are extremely difficult questions for many people to ask themselves. One key point about ambiguation is that it should be authentic and true. So much harm has been done by the closet and the deception it requires. We should avoid deceptive remedies, even if they have noble goals.

Would Lambda Approve?
The LGBT community is less likely to support trivializing or self-aggrandizing attempts at ambiguation and more likely to support ambiguation that reflects genuine introspection or is deployed when sexual orientation should not be relevant to the question at hand. In some ways, our substantive questions reflect the kinds of concerns that community members have often raised. To measure this, you could personify the community in an organization like Lambda and imagine the response your ambiguation would get.

Ambiguation in Action
Finally, if it’s OK, then how exactly would an ally go about ambiguating? The following list provides a few suggestions of the sort of thing one could do or say to create an ambiguating effect. Note that while these suggestions falls short of actual misrepresentation, they all raise questions about sexual orientation. And to the extent the speaker allows those questions to go unanswered, others might rethink their assumptions about when and why sexual orientation is relevant.

1. Avoid gender specific terms like “husband” or “father” and instead use terms like “partner” and “parent.”
2. Fly a gay pride flag from your home or put one in sticker form on your car.
3. Wear a pink triangle button or other gay-affirmative symbol. Simply wearing a T-shirt that says “I support gay marriage” can send a powerful message and raise questions.
4. When discussing gay people and their perspectives, experiment with phrasing that aligns you with gay and lesbian people without clearly identifying your own sexual orientation. For example, say something like “those of us who are gay might take umbrage at the claim that child rearing does not occur in families headed by same-sex couples.” Particularly if the audience for this sentence contains people with anti-gay sentiments, a sentence that potentially aligns you with gay people may be an equality-enhancing move.
5. When a person says something to suggest that he or she has misperceived your sexual orientation, think carefully before jumping to correct. If correcting the misperception will raise that person’s estimation of you, it might be better to remain in their disfavored category.
The key element in all of these examples is a willingness to occupy a large, uncharted space in which sexual orientation is unassigned, where multiple realities or possibilities are entertained, and where heterosexual people reflect long and hard before they expend any energy to distinguish themselves from gay, lesbian and bisexual people.
Creating critical masses of heterosexual people willing to take these risks could be one of the central challenges of gay rights advocacy in the 21st century.

1. We’ll send a free book to the first person who gets a business with at least 10 employees to license the fair employment mark.

2. We’ll send a free book to the person who gets the largest number of employees covered by the license in the next month.

3. We’ll send a free book to anyone who gets a business with more than 100 employees to license the mark.

To enter the contest 1) get a business/employer to license the mark on line at www.fairemploymentmark.org, 2) send an email to [email protected] with the subject line “free books” and tell me the names of the business or businesses that you got to license the mark as well as your mailing address. If the business has a webpage, please send a link for that as well.

I will check to see that the businesses did in fact license at our site.

As I said in an earlier post, the licensing agreement can provide protection for non-US employees. So this is a contest in which anyone in the world can participate.

Here’s a pre-emptive strike against those who will want to rail against the contest idea. The books aren’t really free – you have to do something to get them. But that something is trying to provide others with a basic civil right – a legal remedy for the harms of discrimination.

Jennifer and I will provide a lot (but not all) of the book’s ideas for free in the coming week. We should have talked with Princeton University Press about the idea of making the entire book available — at least for a limited time. But we are willing to spend our own money (and believe me these books are not free to us either) to try to launch the mark by getting some more licensees.

Lots of the comments to Jennifer’s posts worried that managing information meant (a) lying or (b) burdening individuals’ rights of association.

But here’s an informational proposal for dealing with the Boy Scouts’ discrimination that promotes both honesty and informed association.

The Supreme Court in 2000 struck down the application of New Jersey’s civil rights statute as applied to the Boy Scouts. If a private organization wants to discriminate against gays, the Court found they have a constitutional right to do so.

Jennifer and I in the book and in an article at AlterNet argue that New Jersey might pass a new statute that mandates a private conversation between organizations that wish to retain the right to discriminate and their potential members. The organization would have to privately disclose to potential members that it discriminates AND members would have to privately sign an acknowledgement (which would be kept on file by the organization for the possibility of in camera court review) that they wish to associate with an organization that retains the right to discriminate.

Lots of people worry that public disclosure would chill associational rights. I might be deterred from joining an unpopular group if the public get to know about it and harass me.

But requiring a private conversation of this kind facilitates freedom of association. The right to association is also the right of people not to (unwittingly) associate with organizations that have policies that they view to be repugnant.

Or to put it another way, our contractual silences always have some default meaning. Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation. There is no constitutional reason why the New Jersey legislature can’t flip this default. They could ordain that private organizations that fail to privately disclose (and obtain acknowledgements about) their policies that are in derogation of general civil rights restrictions will be deemed to accept those restrictions.

Ian Ayres

I really enjoyed reading the comments on my post from yesterday, and the many responses those comments engendered. Several people have already said much of what I would say to explain our references to privilege and the role it plays in mobilizing heterosexual allies.
One point I should be up front about: Straightforward is unabashedly written for an audience that is already on board with the idea of equality for gay, lesbian, and bisexual people. The book does not attempt to marshal arguments against discrimination on the basis of sexual orientation. We’re assuming that our readers already agree with us about that and now seek ways to put their beliefs into action. Readers who seek reasoned argument on this first point might find the following books of interest: Gaylaw by William Eskridge, The Gay Rights Question in Contemporary American Law by Andrew Koppelman, or Virtually Normal by Andrew Sullivan. But even if you’re not a gay rights supporter, our hope is that you’ll find some of the ideas we highlight this week in the blog to be thought provoking at the least.
I understand the resistance to a concept like “heterosexual privilege.” It can be difficult, even a bit threatening, to face the ways an unequal system gives us advantages that are denied to others. And this is true whether the advantage is based on sex, race, sexual orientation, or where our parents went to college (if they went to college). It just seems to be a fact of life that it’s a lot easier to see inequality when you’re on the disadvantaged side of the transaction than when you end up on top. So as a white woman, I don’t really see the way race affects my life, but I’m quite aware of gender (e.g., taking greater precautions when I walk to my car in a dark parking lot, or making a point at a meeting that goes unacknowledged until a male colleague repeats it). In our discussion of privilege, we’re challenging people of good faith to raise their awareness of the rights and abilities they have and take for granted as heterosexuals, and to see how these are sometimes denied to LGBT people. Our hope is that readers will stick with us through that challenging process and read on.
Jennifer Gerarda Brown

A couple of comments I found particularly helpful and with which I would concur:
Jens wrote:

“Privileges”, at least in this context, are not merely “rights”. Privilege is unequal access: “a special right … granted or available only to a particular person or group of people” [New Oxford American Dictionary]. Eliminating privilege thus means fairer access to rights.
“Heterosexual privilege” can be a tough concept to see. Two examples of a minor privilege come to mind. First: A bi female friend of mine once told me she was afraid to hold her girlfriend’s hand while they were driving [in Phoenix], because there were a lot of jacked-up trucks whose drivers could look down right into their small car and might yell insults at them, or worse. Second: my father, who is quite liberal, once mentioned that he was fine with people being gay, but on the streets in San Francisco why did they have to “flaunt it” by holding hands or kissing where people could see them?
Both illustrate a pervasive and invisible privilege: to be able to express affection to someone you love (or maybe just are flirting with), without the well-founded fear that you might as a consequence be yelled at, harassed, beaten up or even killed for it.

And Rob Rickner helpfully “unpacked the verbiage” this way:

The term “heterosexual privilege” seems to be used in this article to bring forward the benefits heterosexuals receive for being the dominant sexuality. Heterosexuals get lots of advantages … both legal and social. By calling it a privilege, the authors simply force heterosexuals to recognize the advantages they have, often unknowingly, received for most of their adult lives. This seems to be Step 1: recognizing the advantages you have. It may be a little alienating for an equality minded individual to have to admit they are higher on the totem-pole, but right now it is a reality we have to deal with.

Rob Rickner also cited as examples our points about Boy Scouts and “ambiguation,” and we’ll post longer entries about those soon.

Jennifer Gerarda Brown

The Fair Employment licenses and the Creative Comment licenses face similar kinds of resistence. We often hear people say that no employer in its right mind would volunteer for legal liability. But this sounds a lot like people who say that noone in their right mind would ever throw away potential copyright revenues.

But it turns out that there are lots of parallel reasons why adopting these licenses make plenty of sense.

First and foremost, committing to equality is good business. 88% of the public opposes employment discrimination against gay and lesbian workers. And licensing the fair employment mark could be a great recruiting tool. [The parallel here is that giving away part of your copyright bundle of rights can still let you sell books or services or get your ideas out in ways that can produce revenue.]

The cost of allowing private suits is incredibly low. The GAO studied 11 states which had already prohibited employer discrimination. In the average year only 6/100th of a percent of employees brought claims of sexual orientation discrimination. Even if an average claim costs an employer $100,000, this would represent an extra cost per employee of only $1.67 per year. Employers who voluntarily sign up are even less likely to face liability. Employers who operate in the 15 states and dozens of municipalities that independently prohibit this type of discrimination have no additional exposure. [The parallel here is that there are plenty of copyrights that would never have produced revenue anyway — so you have nothing to lose by giving it away.]

Most importantly, promising not to discriminate is the right thing to do. Licensing the mark doesn’t mean that an employer can’t contest claims of discrimination. It just means that the business can’t stand up in court and say “we have a right to discriminate against gay and lesbian employees if we feel like it.” [The parallel is the most obvious — setting copyright information free is a powerful engine for social good.]

Let me take a stab at mapping out what Ian and I are going to try to accomplish over the next week. As Larry mentioned, we’ve just published Straightforward – which makes the argument that mobilizing heterosexual support is crucial to making progress on securing equal rights for gay, lesbian, and bisexual citizens. The book is packed with advice about what people can do – on personal and public levels.

But what we really want to stress here over the next week are a series of informational innovations that can promote equality in the military, in the boy scouts (and other discriminatory organizations), in marriage, and in the workplace. The Fair Employment mark fits right in with the theme of informational incrementalism. By certifying one piece of information – that a business does not discriminate – we might be able to induce a substantial number of employers to privately opt into ENDA, a proposed federal statute that Congress has been unwilling to enact.

The first chapter of our book discusses how we might set out to manage heterosexual privilege. We highlight three approaches: exploiting, renouncing, and disabling privilege. We also suggest informational strategies for implementing each approach. We’ll try to suggest factors that counsel allies to speak out specifically as heterosexuals, and others that suggest it’s better to leave sexual orientation ambiguous.

Over the next week, you’ll see the way our proposals attempt to harness the support of heterosexual allies, and the important role that information plays in that process. It shouldn’t surprise the readers of this blog that managing information turns out to be a powerful way to manage privilege.

A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit not to discriminate on the basis of sexual orientation. With just a few clicks of the mouse, at www.fairemploymentmark.org any employer in the country can license the “Fair Employment Mark.” It is an innocuous symbol, an “FE” inside a circle:
There are lots of parallels to the Creative Commons. Both are reinventions of traditional intellectual property licenses to make the world a better place.

Employers that are committed to the idea of employment equality for gay and lesbian workers don’t have to wait for federal or state legislation. They can privately adopt the legislation themselves.

You can learn more about the mark either in Chapter 4 of our new book or in this draft law review article.

The idea is simple, really. By signing the licensing agreement, an employer gains the right (but not the obligation) to use the mark and in return promises to abide by the word-for-word strictures of ENDA (the proposed federal statute that would prohibit employment discrimination on the basis of sexual orientation). Displaying the mark on a product or service signals to knowing consumers and employees that the company has committed itself not to discriminate on the basis of sexual orientation.

Other certification marks (such as the Good Housekeeping Seal, the Underwriters Laboratory, and the Orthodox Union marks) require the mark holder to police the certification to insure compliance with the requirements of the licensing agreement. But the licensing agreement for the Fair Employment mark allows employees and applicants to enforce the ENDA duties directly as express third-party beneficiaries of the agreement. The Fair Employment mark thus replicates the core enforcement mechanism of ENDA by creating private causes of action in the same class of individuals who would gain protection under the statute.

The license is also incredibly transparent. No need to worry that Ayres and Brown will be litigious or hold up licensees for money. We disclaim any personal right to sue for breach of the non-discrimination promise and licensees can terminate their license at anytime. It is clear we are not profiting from this venture because we charge no licensing fee. The substance of the licensees’ duties is also clear. We did not try to improve on ENDA, just to copy it. Since ENDA requires a filing of claims within 180 days, so does our license. Since ENDA would allow arbitration agreements, our license would as well.

The mark represents an incremental strategy in the struggle for equality. Most importantly, the mark holds out the possibility of extending substantive ENDA rights – especially rights to sue for discrimination – to potentially millions of workers and applicants who are currently uncovered.

But the mark also provides a “demonstration” effect. It provides Congress with information that might quell concerns about ENDA. The mark provides a mechanism for producing case law about the language of a statute before the statute is ever enacted. The mark thus provides legislators with information about the ways a statute might be interpreted by courts, as well as the rates of litigation the statute might engender.

It is somewhat surprising, but to the best of our knowledge, this license is the first time that private contractors have intentionally taken the language of proposed legislation and inserted it into private agreement.

People in the United States strongly support the simple idea that employers should not discriminate against gays and lesbians. In a 2003 Gallup poll, a whopping 88 percent of respondents said that “homosexuals should . . . have equal rights in terms of job opportunities.” Even prominent conservatives — such as George W. Bush — at least give lip service to the idea that employment discrimination on the basis of sexual orientation is wrong.

But gay rights advocates have made only limited legislative progress on this issue. Fifteen “blue” states have prohibited employment discrimination against gays and lesbians. At the federal level, the “Employment Non-Discrimination Act” (ENDA) has been introduced several times in Congress without success. ENDA has virtually no chance of passing during the Bush administration.

A boatload of prominent corporations – including the likes of AT&T, Coors, IBM and General Mills – have already come out and endorsed ENDA. Virtually all the corporate endorsers of ENDA already have nondiscrimination policies that include sexual orientation. But the pretty words of nondiscrimination policies sometimes turn out to be only that. If an employer discriminates against an applicant because she is gay, it is far from certain that the employer would be liable for breach of contract – even if the employer has a non-discrimination policy.

Lots of businesses say they oppose this kind of discrimination. They adopt policies and endorse ENDA. Few employers, given the chance, would opt out of race discrimination laws. Few employers would opt out of ENDA if a waivable version were enacted. Now, with the Fair Employment mark, they have the opportunity to opt in.