1. Preliminary Distinctions
If we are to think clearly about the items on the homosexual
rights agenda, we must begin by answering two questions.
First, whose rights are at issue? There are at least three different possible answersųpeople who have homosexual desires, people who sometimes engage in homosexual activities, and people who lead a homosexual lifestyle. A person might be a homosexual in one of these senses, but not in the others. For example, one might feel homosexual inclinations but (whether out of conviction, social pressure, or lack of opportunity) not engage in the corresponding activities. Or, one might engage in homosexual ac tivity, not out of antecedent inclination to such activity, but as a way to satisfy sexual urges when no heterosexual opportunities are available. One might be a homosexual in either of the first two senses but not believe that homosexuality is morally permissible, identify oneself as such (either publicly or in one‚s self-conception), or make involvement in homosexual institutions a central feature of one‚s life. To the extent that one did accept the permissibility, so identify oneself, or so constru ct one‚s life, one might be said to have moved beyond the mere commission of homosexual acts to the cultivation of a homosexual life-style. It is obviously possible to cultivate such a life-style without having any homosexual inclinations or without engaging in any homosexual activities. The utility of this three-way distinction will be shown below.
The second question isųwhat rights are being secured? There are at least four distinct kinds of legislation included in the homosexual rights agenda. First, repeal of anti-sodomy statutes. Second, ending of such government-imposed disabilities as ineligibility for immigration, military service or other public employment, and the right to adopt children. Third, official recognition. This includes the demand for public acknowledgment of the appropriateness of homosexual acts (e.g., in sex education classes in the public schools) and treating some homosexual friendships as the equivalent of marriages. Fourth, protec tion from acts of discrimination by private individuals. Such protection could range from enactment of hate crime statutes enhancing the penalties for assault or intimidation to forbidding landlords or employers from considering a potential tenant or employee‚s sexual interests or activities in renting and hiring. In Hohfeldian terms, then, the rights claimed are of various types. Some are claims, some powers, and some immunities.
Proponents of the homosexual ri
ghts agenda usually make
their case on the basis of two principles. The first is the moral indifference
of homosexual conduct. The second is Millian liberalism, the theses
that government cannot know what will make a given individual‚s life a
good one and consequently should not interfere with anyone‚s self-regarding
actions. More generally, it should remain neutral among competing conceptions
of a good life, endorsing or opposing no form of life that does not involve
interference with the well-being
of others, but doing what it can to lay
the foundations on which each citizen can construct the life he thinks
best. Even if homosexual conduct is wrong, the argument goes, it is not
the kind of action that is a proper subject for legislation or official
or social disapprobation.
If the Millian argument is sound, the argument for the moral indifference of homosexuality is unnecessary, but most defenders of the homosexual rights agenda believe, and advance, both. The point of their d oing so is, of course, to undermine the standard objections to the homosexual rights agenda.
The argument against much of the homosexual rights agenda is based on two principles contrary to those just stated. The first is that homosexual activity is morally wrong. The second is that it is wrong in a way that is relevant to many of the items on the agenda. It follows from that relevance that differential treatment of homosexuals in some controversial cases is not unjust discrimination and homosexuals are not entitled to protection from it.
In Section 2 of the paper, I will argue for the immorality of homosexual acts. In Section 3, I will argue that a person‚s decision to engage in homosexual actions is often a legitimate basis for differential treatment and therefore that discrimination on the basis of sexual conduct (not „orientationš) is not always unjust.
2. The Wrongness of Homosexual Actions
Considering the widespread condemnation of homosexuality, even in cultures that have no access to the revelation shared by Judaism, Christianity, and Islam, it is surprising that homosexual rights proponents so insistently claim that all opposition to their actions must be based either on prejudice or revelation. Perhaps they are misled by the fact that many people in our culture do much of their ethical reasonin g theologically rather than philosophically.
One does not have to have a good Scripture-independent argument against homosexual acts to be entitled to believe that such actions are wrong. The whole point of revelation, according to St. Thomas Aquinas, is that, despite the clarity with which we can know the first precepts of the natural law, the secondary precepts end up being the subject of endless debate not only among coffee house philosophers, but among profe ssional ones as well. But we all need to know how to live and act even before we figure out exactly what‚s wrong with the latest sophistical argument for the permissibility of infanticide. Hence, Scripture, and its authoritative interpreter, the Church.
Nor does American constitutional practice makes it wrong for American citizens to support or oppose legislation on theological grounds. Many opponents of slavery, racial discrimination, war, nuclear deterre nce, and capital punishment based or base that opposition on religious principles. Are these people doing something wrong in voting their (religion-formed) conscience on these issues?
In the case of homosexuality, as in the case of slavery and racial discrimination, the fact that many people deploy religious arguments does not mean that there are no non-religious arguments available. The best way to show this is to lay out such an argument. Here is how the argum ent goes.
Homosexual acts are wrong, not because of their motive (whether that be giving or getting pleasure or even expressing love for another human being) but because of the nature of the action itself.
Each human power has its proper role to play in the attainment of a good life. Some human powers, in particular the senses, work fairly automatically. As long as our eyes are open, we see things. The only choice we have is whether to open our eyes (and what to look at).
Other human powers are not so automatic. Take the intellect. Seeing may be believing, but with respect to other propositions, whether we believe is, at least sometimes, a matter of choice. Since the proper function of the intellect is knowing (i.e., believing what‚s true, and disbelieve what‚s false), we have a regulative principle for the use of the intellectųwe ought to believe propositions when there is good evidence or authority for their truth, but not when our only reason for believing is the fun of being idiosyncratic or iconoclastic. Believing propositions for which there is not good evidence (e.g., that all homosexuals are promiscuous) is not just a case of lack of charity; it is a misuse of our minds. It reveals (and reinforces) an intellectual flaw (credulity). It is intellectually wrong.
Similarly with eating. Eating can be pleasurable and going out to eat with someone can be a good way of cultivating or continuing a friendship. But eating is not for pleasure. That is not why we have the power of eating. It is physically possible to cut eating off from nutrition. For example, we could get our nutrition intravenously and then fill up on cake and ice cream. Or, to avoid getting fat, we could eat our fill and then purge ourselves so we could go to lunch again with someone else. We need not eat only nutritious food, but cutting eating off from its nat ural purpose shows too much concern for eating and its pleasures or a willingness to eat in a way inconsistent with the proper end of eating. It reveals (and reinforces) a character flaw (gluttony). In other words, it is morally wrong.
The same considerations apply to our power of sexuality. Like eating it provides pleasure and like dining with others it plays a role in building (a certain kind of) friendship. But also as for eating, it has a natural functionųre production. And, also like eating, there are ways of going after the pleasurable or companionable aspects of sexuality, while cutting the act off from its natural function. We need not limit sexual activity to times when it is likely to produce children. But cutting it off from its natural purposeųwhether by deliberate obstruction of the natural result (as in contraception) or by using it as a general (i.e., marriage- and procreation-independent) expression of intimacy (as in homosexual sexual acts even bet ween permanent friends)ųshows too much concern for sex and its pleasures or a willingness to engage in it a way inconsistent with the proper end of sexual activity. It reveals (and reinforces) a character flaw (lust). In other words, it is morally wrong.
Consequently, homosexual actions are objectively morally wrong. The point of the qualification „objectivelyš is to limit the appraisal to the act as a kind of action, prescinding from such complicating factors a s the agent‚s ignorance of the wrongness of the action, non-voluntariness, &c. Homosexual inclinations, on the other hand, although they are disordered desires, do not in themselves reflect on a person‚s character and hence are not a moral fault.
Nava & Dawidoff argue that since these moral principles are no longer accepted by most Americans (as shown by the widespread practice of contraception, which the principles also condemn), they cannot be used as a foundation for laws against sodomy. But to require the public to see a principle and all its implications clearly before it can use the principle as a basis for any legislation is to set too high a standard. The public correctly sees that homosexual actions, by the very fact that they are homosexual, are far removed from the proper use of our sexual powers. The fact that they fail to see the similarity between those actions and contraceptive acts does not mean they have no right to forbid acts the w rongness of which they do see. Or does a jurisdiction that, for whatever reason, fails to criminalize marital rape leave itself open to discrimination suits from other rapists on the grounds that society is hypocritically failing to criminalize all acts of a certain kind?
3. The Relevance of the Immorality of Homosexual Activity
Defenders of the homosexual rights agenda often argue that, even if homosexuality is wrong, it is not a proper basis for differential treatment either by private individuals or by the government.
These claims are true with respect to homosexuality of
inclination. Such a condition is not freely chosen, and although conditions
not freely chosen can sometimes be a relevant basis for differential treatment
(severe mental illness is an example), the relevance of homosexual inclinations
alone to the policies at issue has not bee
n shown. But the homosexual
rights agenda is not really primarily about such discrimination. After
all, there is, in most cases, no way to know what inclinations a person
has unless that person chooses to reveal them or is discovered acting on
The claim about the irrelevance of homosexuality is not true with respect to homosexual conduct. Homosexuality, whether merely of activity or of life-style, is relevant to many, though perhaps not all, of the policies under attack by pro ponents of the homosexual rights agenda. Because the policies at issue are diverse, and in each case the relevance of sexual conduct to that policy must be shown if differential treatment is to be justified, the various policies will have to be taken up individually.
There is not room, in a single essay, to discuss each item on the homosexual rights agenda. In this section, I will discuss a only sample of the issues. That will be sufficient to show that differen tial treatment is sometimes justified. It does not, of course, establish whether differential treatment is justified in matters not discussed here.
a. Anti-sodomy laws
About half of the American states currently criminalize homosexual sex acts. In order to be justified there must be something wrong with the actions criminalized and the criminalization must not do more harm than good. That th ese laws pass the first criterion I have argued above. Do they pass the second criterion as well? Are they really needed to achieve a good society?
One of the concerns that St. Thomas expresses about using human law to enforce all aspects of morality is that such an effort would set a standard too high for many to attainų„The purpose of human law is to lead men to virtue, not suddenly but gradually.š In a culture as obsessed with sex as is our own, one mig ht argue, it is extremely difficult for many people to exercise sexual restraint.
Another concern of St. Thomas is that there are some laws which could not be enforced without „doing away with many good thingsš as well. This concern coincides with privacy-based arguments against sodomy laws, such at that expressed by Justice Blackmun:
Although those arguments against the appropriateness of anti-sodomy laws raise legitimate concerns, they are not decisive.
In response to the concern about setting too high a standard, defenders o f anti-sodomy could point out that, in a society in which the claim that sexual activity is necessary to happiness is incessantly repeated by the entertainment media and where the recreational approach to sex is pervasive, it is all the more important to use the power of law to reinforce the recognition of the wrongness of certain kinds of sexual activity.
The privacy concerns are violated not so much by the existence
of the statutes, but by their manner of enfo
The accusation of inconsistency neglects the possibility that criminalization of certain more serious offenses might cause more collateral harm than criminalization of related less serious offenses. Since the cost of enforcement, &c. must be taken into account in determination of what actions should be made criminal offenses, the charge does not stick.
Further, despite the obvious implausibility of any simple identification of the immoral with t he illegal, there are nevertheless a large number of people who insist that government policy may never legitimately discourage otherwise legal conduct. Unenforced anti-sodomy laws have the advantage of fulfilling the instructional purposes of law and laying the foundations for other policies and restrictions without unduly entangling the state in policing sexual behavior.
b. Government-imposed disabilities
There are a number of issues that could be considered hereųimmigration, employment, government housing, other government benefits, and adoption rights. The question of differential treatment in employment can be further subdivided according to the kind of employment. The relevance of homosexuality in each of its senses to military service, police work, teaching and youth leadership, and work requiring a security clearance has been, at various times, asserted as a basis of policy of differential treatme nt. Here, I want to discuss two issuesųthe relevance of homosexual conduct to teaching and to adoption and child custody policy.
What is the relevance of homosexuality of activity or life-style to teaching? The justification for a policy of refusal to hire active homosexuals (whether of life-style or merely of activity) as teachers is that teachers are and should be role models for those whom they teach. Good character is a necessary feature of role models. Though active homosexuals may well be as trustworthy, &c. as other people, their homosexual activity or life-style itself sets a bad example. How could a community teach its youth a conception of chastity that limited sex to marriage and of marriage as an essentially heterosexual relationship if its teachers made no attempt to live a corresponding life? Of course, many defenders of the homosexual rights agenda do not want the state to teach any such thing. What it is appropriate to teach about s ex and marriage depends, of course, on what is true and on whether there are issues on which the government (whether on principle or as part of a political compromise) should take no stand. I discuss this issue further under the head „Curricular Neutralityš below.
A policy against hiring active homosexuals does not, it must be emphasized, bar anyone from teaching. What it does is to require that those who choose teaching as a line of work refrain from activities that would undo the education that they are hired to provide.
The same considerations that apply to hiring youth workers apply to the question of adoption of children by active homosexuals or retention of custody of children one already has. In the latter case, however, the case for denying custody must compete with a strong countervailing consideration that is absent in the previous cases, namely that removal of a child from a parent‚s care itself has serious bad effects on the child that mere refusal to hire or grant adoption rights does not.
c. Recognition I: Curricular neutrality
There are, as I suggested above, two salient claims for government recognition of the normality of, or at least for neutrality towards, homosexual relations. The first is in school curricula. Here the demands are at least two. The first is for a positive and explicit presentation of homosexuals, homosexuality, and the homosexual life style in literature, history, and social science classes: „The accomplishments of homosexual Americans and respect for their lives and their privacy must be taught as part of the social studies curriculum in every public school in America.š In pursuit of this objective grade school students at some schools have been assigned to read books like Daddy‚s Roommate or Heather has Two Mommies. The point of this Nava & Dawidoff put as follows: „Society must encourage institutions and families that acknowledge homosexuality as the basis for a morally serious life.š The second curricular demand concerns the way in which homosexual acts are presented in sex education classes.
It is difficult to determine on what basis a society committed to Millian liberalism should conduct its public schools. The function of schools is education and education is by definition a matter of making people better. It therefore unavoidably presupposes some conception of what knowledge and skills are needed to have a good life.
No one questions that it is the job of the schools to provide students with such intellectual skills (we would once have said virtues) as the ability to read, write, and calculate and the knowledge of certain basic facts about the physical and social world in which they live. It is now fashionable in some quarters to claim that the school should not be involved in moral education, but no one really believes that. Children must learn how to live in community with others. So, schools continue to encourage cooperativeness, sharing, considerateness, acceptance of majority rule, respect of minority rights, and a host of similar virtues. In addition, schools cultivate industriousness, patience, self-reliance, honesty, and sportsmanship. Temperance („drug abuse resistanceš) is, of course, another example of a moral virtue taught in the schools. The importance of teaching children virtues is emphasized by liberals no less than by traditionalists. This becomes particularly clear with respect to virtues such as tolerance, respect for the environment, and the like. There are disputes about how much emphasis certain virtues should receiveųself-reliance is an example. And there are disputes about how certain virtues are to be interpreted. Does sexual temperance require abstinence from all sexual actions that are non-procreative or non-unitive? or merely all extramarital sexual activity? or only all exploitative or coercive sexual activity?
No one, I believe, can seriously maintain that schools should stay completely out of the character-shaping business. And only radical libertarians maintain that the state should stay out of the school business. And there is no way that schools can stay neutral with respect to, say, the paradigmatic character of the heterosexual couple as the basis of the family. It can emphasize or mute what it has to say about what constitutes a family. But presenting grade school children with alternative models is no more neutral than is emphasis on the traditional family. Presenting high school children with accounts of various sexual practices (homosexual and heterosexual)ųeven with warnings that the class is „just about technique and safety, not about moralityš is not neutral. To mention certain practices without addressing their moral implications does send a certain message. Those who doubt this should ask themselves what they would think about a business school which taught its students how to keep two sets of books. „We are not going to address the moral aspects of embezzlement,š the professor might say. „We are only going to show you how those who do choose embezzlement go about doing so, and how to minimize the risks of getting caught in case you decide that embezzlement is the right choice for you.š
Racism is wrong. Students should not be told merely tha t there are six models of race relationsųextermination, deportation, apartheid, slavery, segregation, and integrationųfrom which to choose. They should be taught and encouraged to practice the kind of racial tolerance that make an integrated society possible. If, as I argued above, certain kinds of sexual activity are wrong, students should not merely be told that there are a number of options from which to choose.
d. Recognition II: Homosexual friends hips as marriages
The second recognition claim on the homosexual rights agenda is for the recognition of certain homosexual friendships as legal marriages. Nava & Dawidoff write: „The government has no right to favor with recognition the bonding rights of some people over those of others on the basis of race, religion, or sexual orientation.š Although homosexuals like to present such recognition as merely granting them a right that everyone else already has, the issue might better be presented differently. Homosexuals have the same right to marry that everyone else does, namely, the right to marry persons of the opposite sex. The fact that they may not want to do this does not alter the fact that they have a right to do so. No one has a right to marry persons of the same sex. If there is something wrong with homosexuality of life-style, there is a good reason for refusing to sanction relationships based on it. No one is any more unfairly treat ed than they are by the prohibition against marriage to a parent or sibling. For in this case also, some people are allowed to marry a person whom others may not marry.
In granting marital status, society grants certain rights not open to unmarried couples. For example, marital status is recognized in tax and inheritance law and in the assignment of certain welfare benefits (e.g., opportunity to use public housing). In addition, social security will suppor t the spouse, but not the friends of a worker who has died. Is there a good reason to grant opposite-sex couples rights not open to same-sex couples?
The answer is that there is good reason to do so. Marriage, like sex, is established for the good of children. Society has a special interest in promoting the bearing and raising of children and therefore granting to marriages, which are naturally suited to the raising of children, privileges not made available to friendships not so suited. The family with two parents of opposite sex may not be as common as it once was, but it is, for psychological and other reasons, the best kind of family.
There are good reasons for recognizing prospectively childless couples as married. First, the prospective childlessness is often (not always) a matter of probability. Second, even when it is not, procreation-precluding medical conditions are not, as sex is, a matter of public record. Third, couples themselves incapable of having children are capable of adopting them. The reasons for not allowing homosexual couples the right to adopt children was discussed above.
If the privileges of marriages were extended to homosexual friendships, why should they not also be extended to other friendships? Why should they not be extended to a young person living with, and supporting, an elderly relative? Why should they not also be extended to groups of thr ee or five or more individuals of any mix of sexes who decide to attempt a permanent relationship?
e. Anti-discrimination laws
Finally, the homosexual rights agenda includes a demand for protection from discriminatory acts of others. There are several distinct issues here.
The first is for protection from acts of violence. There can be no question tha t they are entitled to the same protection that is due to any other citizen who is threatened with violence. There may be jurisdictions in which increased penalties for anti-homosexual violence is an important component in providing that protection. Such hate crime legislation no more indicates community acceptance of homosexuality than would legislation to protect horse thieves from being lynched suggest the acceptability of stealing horses.
The second is for p rotection from acts of discrimination in housing and employment. Employers and landlords were once given wide discretion in their selection of employees and tenants by the positive law. The result was the systematic exclusion of certain groups from opportunities which should have been open to them. This problem had to be remedied by legislation. Should similar protection be granted to homosexuals? Three kinds of refusal to hire or rent to homosexuals must be considered.
The first kind is on the basis of possible harm (i.e., scandal). The case of teachers, coaches, &c. was discussed above. There are other positions where the lives (including the private lives) of workers would be seen as reflecting the values of the employer. A church might, for that reason, refuse to hire even as a janitor a notorious drinker or womanizer, the local head of the Ku Klux Klan, or an active homosexual.
The second is on the basis of po
ssible reasonably taken
offense. To think about, and thereby to take offense at, the private conduct
of one‚s fellow workers is unreasonable. No one needs, and probably no
one should, spend time idly thinking about the shortcomings of others.
However, there are certain activities that are properly private in the
sense that bringing them up in, say, office conversation is offensive.
An employer could thus reasonably, in order to avoid offensiveness, expect
workers not to talk about their sex lives (including
their marital sex
life) around the office. It would be unreasonable for anyone to take offense
at a co-worker‚s putting pictures of his friends (including same-sex friends)
on the desktop or talking about ordinary activities with that friend. Calling
same-sex friends „boy-friendsš (or „loversš or „spousesš), talking about
taking them dancing, and the like, on the other hand, is to talk about
sex in a way to which others can and do reasonably take offense. If homosexual
conduct is morally objectionable, the
n such talk cannot be put on a par
with say, referring to one‚s wife or announcing that one is going to have
a baby. Requiring those leading a homosexual life style not to discuss
such matters at work is thus not an infringement on their rights; it is
merely a demand that they not offend other by reference to conduct to which
they have no moral right in the first place.
The refusal to hire or retain workers on the basis of this consideration is merely an exercise of the right to ref use to associate with those who choose to engage in offensive conduct. To the extent that either the basis of offense was not under the control of the offender, or the contact between the offender and those offended would be minimal, the right to refuse to hire would be weakened. Thus one might properly distinguish between the landlord of an owner-occupied duplex and of a free-standing home in the regulation of housing rental.
The third is on the basis of simple dislike of homosexuals. To what extent does someone have the right to make hiring or renting decisions on the basis of mere personal preference? Examples in one direction would be preferring an employee who has a pleasant voice, or a good sense of humor, or likes playing chess, any of which might happen to appeal to an employer despite their irrelevance to the applicant‚s ability to do the job. More directly analogous would be negative preferences against, say, someone who speaks with a Southern acce nt, who dresses in unconventional ways, or who has a sullen disposition.
There are two ways in which such hiring could raise moral problems. The first is this: Refusing to hire a certain kind of person because one does not like some irrelevant trait which they happen to have is often the sign of a character flaw; hiring because one likes an irrelevant trait does not. Contrast someone refusing to hire a Jew („I never liked them muchš) and deciding to hire a Korea n („I spent a tour of military duty there and would love to learn a little more about the cultureš). The second is that to the extent that arbitrary preferences move from mere personal idiosyncrasy to de facto general policy (among most employers, say), the role of that feature in hiring decisions threatens to leave certain kinds of people without jobs altogether, which of course raises problems of social justice.
Proponents of homosexual rights make several claims about
their agenda. First, they claim that they are not asking for special rights,
but merely the rights that other Americans already have. Second, they claim
that the recognition of the rights of homosexuals does not depend on one‚s
acceptance of homosexuality as morally permissible. For a narrow range
of the items on their agendaųsaliently the right to protection from physical
harm and the right not to be the objects of discrimi
nation on the basis
of their orientation aloneųthese claims hold true. They do not, however,
hold true for the vast majority of the items on the agendaųnot for blanket
protection against any job discrimination, not for the introduction of
homosexual couples into grade school readers, and not for legal recognition
of homosexual friendships as marriages. Support for the homosexual rights
agenda is not, then, merely a matter of justice, but a demand for a radical,
and pernicious, change to our way of life.