The vision of the anointed: the left and social policy

National Review, July 31, 1995 by Thomas Sowell

Incidentally, Judge H. Lee Sarokin was elevated to the Circuit Court of Appeals by President Clinton in 1994. An even more striking example of the rights of mascot groups overriding the rights of others is cases involving people with contagious diseases. The landmark Supreme Court case in this area involved an elementary-school teacher with active tuberculosis, who was fired because of fears that she might infect the children she taught.

The teacher sued, charging discrimination against the handicapped, in violation of the Rehabilitation Act of 1973. A majority of the U.S. Supreme Court ruled that it was indeed discrimination because tuberculosis could be considered a handicap. Although the school board argued that the teacher was fired, not because of her impairment, but because her presence threatened the health of others, Justice Brennan, writing for the majority, refused to accept that distinction: Arline's contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment. The fate of innocent third parties, such as schoolchildren, carries little weight when the anointed take sides with mascots against targets. As in so many other contexts, this provided an occasion for assertions of the superior virtue and wisdom of the anointed as compared to the benighted. In Justice Brennan's words, the law's purpose was to ``combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped.'' He repeatedly characterized others' responses in such terms as ``reflexive reactions'' and ``prejudice, stereotypes, or unfounded fear.'' Homosexual activists greeted this Supreme Court decision with approval, because of its possible implications for those with AIDS. In contrast to the identification, and sometimes even quarantine, of people infected with other deadly and contagious diseases, AIDS carriers have been guaranteed anonymity by both law and policy as they mingle with unsuspecting members of the general public. From the beginning, public-health officials have been preoccupied with reassuring the public on how they cannot get AIDS. As late as 1983, people were being reassured that their chances of catching AIDS from transfusions of untested blood were ``extremely remote.'' Secretary of Health and Human Services Margaret Heckler went on nationwide television on July 3, 1983, to ``assure the American people that the blood supply is 100 per cent safe.'' But just one year later, the Centers for Disease Control began reporting dozens of cases of people who caught AIDS from blood transfusions; just two years after that, the AIDS deaths from blood transfusions were in the thousands. Precautions to protect the public from AIDS carriers have repeatedly been backed into only after new revelations devastated previous reassurances. Why was this disease approached in a way directly opposite to the way other contagious and potentially fatal diseases have been approached? One reason has been fear of offending the organized, zealous, single-issue homosexual organizations and their allies in the media, in the ACLU, and in other liberal bastions. But this only raises the further question why the interests of carriers of a deadly, incurable, and contagious disease should be regarded in such circles as pre-emptive over the rights of hundreds of millions of other people. The answer to this more fundamental question seems to be that no group has so polarized the anointed from the benighted as people infected with the AIDS virus. In keeping with their having performed this vital role, AIDS carriers are treated as the most sacred of mascots. JUST as groups disdained by the benighted become eligible to be mascots of the anointed, so groups respected by the benighted are eligible to become targets. No part of the law has been strained farther beyond recognition than the laws allowing businesses and the medical profession to be sued. It has always been possible to sue people for damages caused by their negligence.