The fundamental problem with 'anti-discrimination' ordinances

When we strip away all the back-and-forth between opposing opinions, anti-discrimination ordinances designed to protect homosexuals in the workplace and housing boil down to one thing: Sexual orientation absent sexual behavior is not provable. Hence, laws designed to protect vagaries such as “orientation” are innately unjust in court proceedings (i.e., a judge requires facts to determine innocence or guilt).

Let’s peel back the layers of this argument.

The term “sexual orientation” is uniquely associated with homosexuality. Though some antidiscrimination laws define sexual orientation as “heterosexuality, homosexuality or bisexuality,” heterosexuals don’t speak in these invented terms; they speak using natural terms for human sexuality such as male and female. This is only to say that claiming a sexual orientation is generally associated with a person claiming to have sexual feelings and attractions for another person of the same sex. Whether homosexuals are “born that way” or merely develop such feelings and attractions over time, the fact remains there is no objective way for another person to judge someone’s sexuality (homosexual or not) – except through actual sexual behavior.

In both major sodomy cases before the United States Supreme Court (Hardwick in 1986 and Lawrence in 2002), plaintiffs had to stage police emergencies to lure officers into situations where they could observe the plaintiffs having sex with each other. There was no other way for plaintiffs to prove homosexuality and, therefore, show they were violating state sodomy laws on the road to their ultimate goal to plead that sexual orientation should be a protected civil right.

For a man to proclaim he has a sexual orientation absent a showing of actual physical behavior is his prerogative – there is no law against what a man thinks. To proclaim it as a matter of law or policy fails the requirements of justice wherein a judge can objectively weigh the facts and justly rule between accused and accuser. If the only “evidence” is the plaintiff’s personal opinion that he has a sexual orientation, the judge is helpless to rule objectively or justly.

Fine and well, say the critics, then ask, “But why do our laws and policies protect the ‘sexual orientation’ of heterosexuality?” They don’t.

Personal sexual behavior becomes a matter of law or policy to the degree that personal sexual behavior affects, even benefits, society. We human beings know a little something about ourselves. We know we are born male or female. We know males and females can have sexual intercourse and create other males and females – a sexual act that offers futurity to society. We know that the marriage bond between males and females is sacrificial, not selfish, through the prospects of child-bearing, but marriage also domesticates men in relation to women and lifts women from objectification in relation to men – civilizing characteristics for a free society. In rearing children, we know the complementarity between males and females provides optimal protection and nurturing – society loves healthy, functional rising generations.

These basic human “goods” are self-evident. They also trigger laws and policies to protect them.

Homosexual activists argue that same-sex marriage equally domesticates “gay” men – as if the mutual commitment alone between any two human beings is capable of engendering sacrifice and not selfishness. Friendship certainly has this element. But two men do not need to formalize their friendship in matrimony to benefit from that friendship. Nor do they need to have sexual relations with each other. In fact, there is nothing inherent in a commitment ceremony (call it marriage, call it whatever) or same-sex sexual relations that is sacrificial. In other words, there’s a better argument to protect friendship as a civil right than there is homosexuality.

Furthermore, same-sex sexual relations are innately opposite of sacrificial. Homosexual sodomy is innately a selfish act. It is literally sterile. There is no unique benefit to society from homosexual sodomy. That society permits it is no argument that society benefits from it.

Our laws and policies don’t discriminate against homosexuality in favor of heterosexuality. Our laws and policies naturally and obviously favor human sexual behavior that clearly benefits society – child-bearing and child-rearing human sexual relationships.

In other words, society’s approval of same-sex marriage and the raft of accompanying “rights” cannot undo the natural discrepancy between homosexual sodomy and its lack of benefit to society. There is no “equal protection” claim in this instance without the ability to say that same-sex sexual relations are equal in benefit to society as opposite-sex sexual relations. If we’re just comparing homosexual sodomy with heterosexual sodomy, the comparison is seemingly more reasonable – two selfish sex acts. (Although a strong argument can be made that selfish sex acts within the bonds of marriage between a man and a woman even has greater value in context than similar behaviors within same-sex relationships – much for the same reasons we allow sterile men and sterile women to marry; i.e., the never-ending potential for complementarity between males and females in raising even adopted children.)

So let’s come back to the main discussion about antidiscrimination laws to protect homosexuals in the workplace and housing. We know that sexual orientation cannot be proven in a court of law; only sexual behavior can be proven. And we know that personal sexual relations expressed in law and policy are not matters of discrimination or unfairness – society has natural and reasonable claims on its futurity and health: Marriage, family and procreative sexual relations (potential and actual) within that context benefit society; homosexual relations do not.

We also know there is a recognized “proof problem” for people claiming a sexual orientation, evident in every antidiscrimination law of this kind: a provision about “perceived as.” These laws insist that a person shall not discriminate in the perception that someone is “gay.” While we know as a matter of fact that there can be no law against what a person thinks, these “perception clauses” in antidiscrimination laws attempt to codify what one person thinks the other person is thinking – again, a difficult standard to prove in a court of law. Certainly, it is inherently unjust in its construction.

In the most people-friendly way of understanding this issue, we should ask an obvious question: How does an employer or a landlord discriminate against homosexuals?

In an at-will employment environment, as well as in a state that cherishes private property rights, does an employer or landlord discriminate when insisting on reasonable standards of conduct? Most people, I presume, would answer no. Both the workplace and our private property have normative cultures to which employees and guests, respectively, comply with or they’re excused. Unreasonable foul language can be uncomfortable in the workplace, thereby disrupting team cohesiveness and productivity. What about a man who wears a dress, lipstick and high heels to work? What about a young woman who invites her same-sex lover to the company picnic, where they physically express their love for one another?

Maybe foul language is part of the workplace culture. In that case, there’s no reason to penalize it. The same goes for a man dressing like a woman or two women showing physical affection for one another – it could be that the workplace culture invites that behavior. But the workplace culture, not to mention the cultural environment existing on one’s private property, could be repulsed and disrupted by that behavior.

Perhaps an employer or landlord just looks at a person and says to himself, “He looks like a homosexual to me,” and then denies employment or housing to the applicant who is otherwise qualified. Is that thought unfair? Possibly. Is that thought inaccurate? Possibly. Is that thought illegal? No. Why? Because there cannot be any law against what a person thinks. How would “thought police” effectively and justly enforce laws about thoughts? They couldn’t.

What they could do is establish a list of employers and landlords suspected of this behavior, try to create a pattern of bigotry and then prosecute based on an established pattern. But is that effort – chock-full of other potential civil rights violations by government agencies – even worth it in a free society?

There is a bigger point to be made.

Civil rights laws routinely protect human beings in their personhood. Public relationships that discriminate based on personhood are rightly illegal. Someone’s personhood is innate. As demonstrated, a man claiming legal protection based on a personal opinion about his own perceived sexual orientation has a specific legal burden to overcome: he can’t prove sexual orientation absent sexual behavior. Nor can he demonstrate that his same-sex sexual relationship is equal to opposite-sex relationships as it pertains to society. He is left to demonstrate that his actual behavior is compatible with any given workplace or home culture.

And it is at this point in his legal drama that he runs into the brick walls of at-will employment, private property protections and even matters of conscience.

Of course, there are arguments that proof isn’t necessary. We don’t need to know the source of gravity to know how it works nor do we need to find the gene that causes left-handedness to know that some people are left-handed. I address these arguments elsewhere in detail, but suffice it to say gravity, left-handedness and homosexuality are three entirely different matters in terms of public policy – not since the Renaissance has gravity been a matter of public policy, and left-handedness is not objectionable on any basis pertaining to the best interests of society.

One last argument from critics concerns religious liberty. A common retort is that religion is a choice and is protected by civil rights laws – why not protect homosexuality even as a choice? The answer is simple and has been provided: religious practice encourages people to become their better selves and not their selfish selves – a fundamental basis for a free society. Religious faith is a cornerstone of a free society; homosexuality is not. Religious faith strengthens a free society; homosexuality does not.

As practitioners of faith, even people struggling with or engaging willingly in homosexual relations are protected by civil rights laws – just the same as they are protected in their personhood as males and females. The choice to have same-sex sexual relations adds no more substance to existing civil rights protections than the choice of a flavor changes the constitution of ice cream. Ice cream is constituted by its fundamental ingredients, not its variety of flavors. No reasonable person would argue that a flavor, such as strawberry, is itself ice cream. And no reasonable person would argue that a chosen variety of preferred sexual behaviors is itself personhood.

Certainly people struggling with or willingly engaging in homosexuality are human beings. No sane person disputes that fact. As such, they are protected in their civil rights just as any other human being.

That someone doesn’t get the job or apartment they want is a matter of endless potential – and often immeasurable – variables in human nature and in the marketplace. That sexual orientation cannot be proven; that we cannot make laws against what a person thinks; that we cannot even make laws against what one person thinks another person thinks; that human behavior can be proven and that certain behaviors do not comport with many work and living conditions; that laws and policy often concern how personal behavior benefits (or not) society; or that we live in an at-will employment state, have private property rights and rights of conscience – all of these facts push back against antidiscrimination laws on the basis of sexual orientation and gender identity.

And that’s the fundamental problem with “antidiscrimination” ordinances.

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